^ 


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THE  SPHERE  OF  THE  STATE 

OR 

THE  PEOPLE  AS  A  BODY-POLITIC 


WITH    SPECIAL    CONSIDERATION    OF    CERTAIN 
PRESENT    PROBLEMS 


FRANK  SARGENT   HOFFMAN,  A.M. 

PROFESSOR    OF    PHILOSOPHY,    UNION    COLLEGE 


SECOND    EDITION 


G.  P.  PUTNAM'S  SONS 

NEW  YORK  LONDON 

97  West  Twenty-third  Street  24  Bedford  Street,  Strand 

g;^e  llnichnbochEr  |!rtss 
1805 


Copyright,  1894 

BY 

FRANK  SARGENT  HOFFMAN 

Entered  at  Stationers'  Hall,  London 

By  G.  p.  Putnam's  Sons 


Electrotype^,  Printed  and  Bound  by 

■Cbe  TRnicftcibocfecr  press,  "Wcw  Korlt 
G.  P.  Putnam's  Sons 


PREFACE. 


This  book  is  not  written  primarily  for  advanced 
students  in  Political  Science,  but  for  the  average 
intelligent  beginner.  It  consists  chiefly  of  lectures 
delivered  to  the  senior  class  of  Union  College  during 
the  spring  term  of  1893,  and  is  published  with  the 
hope  that  it  may  stimulate  the  reader  to  an  increased 
interest  in  the  problems  discussed  and  help  him,  in 
some  degree,  to  their  right  solution.  The  endeavor 
has  been  made  to  set  forth  in  a  clear  and  concise 
manner  the  ethical  principles  involved,  and  to  show 
how,  under  present  conditions  and  limitations,  they  are 
to  be  applied. 

I  wish  here  to  acknowledge  my  special  indebtedness 
to  the  writings  and  counsel  of  my  friends  and  former 
instructors,  ex-President  Seelye  of  Amherst  and 
Professor  Burgess  of  Columbia.  I  have  also  received 
invaluable  aid  from  the  able  articles  in  the  recent 
Cyclopedia  of  Political  Science  edited  by  J.  J.  L,alor. 
The  other  authorities  made  use  of  are,  I  trust,  suf- 
ficiently acknowledged  in  the  text.  A  short  list  of  easily 
accessible  books  of  reference  is  subjoined  for  the  benefit 
of  those  who  may  wish  to  give  the  subject  fturther  study. 

F.  S.  H. 

Union  College, 
January,  1894. 


CONTENTS. 


CHAPTER  I. 

PAGE 

The  True  Conception  of  the  State   .   .   i 

CHAPTER  11. 

The  State  in  its  Rei^ation  to  the  Govern- 
ment          i8 

chapter  III. 

The    Responsibility    op    the    State    for 

Education 35 

chapter  rv. 
The  Ownership  and  Controi.  of  Property      52 

chapter  v. 
Corporations  and  their  Peace  in  the  State      68 

chapter  VI. 

Transportation   in  its   Relation  to   the 

State 88 

V 


VI  Contents. 

CHAPTER  VII. 

PAGE 

The  State  and  Taxation      .        .        ,        .112 

chapter  viii. 
••The  State  in  its  ReivAtion  to  Money      .      133 

chapter  ix. 
The  Treatment  of  Criminals       .        .        .155 

CHAPTER  X. 

The  State  in  its  Rei^ation  to  the  Poor    .     170 

chapter  XI. 

The  Government  of  Cities    .        .       .       .187 

chapter  XII. 

The  Family  from  the  Standpoint  of  the 

State 207 

chapter  XIII. 

The  State  and  the  Church  ....    229 

chapter  XIV. 

The    State   in   its    Relation   to    Other    247 
States 


SOME  WORKS  OF  REFERENCE. 


Andrews,  E.  B.,  Institutes  of  Economics,  Boston,  1890. 
Blackstone,    Sir   W.,    Commentaries   on   the    Laws   of  England. 

Sharswood's  Edition,  Philadelphia,  1872. 
Bluntschli,  J.  K.,  Theory  of  the  Modern  State  (Translation  from 

the  Sixth  German  Edition),  New  York,  1885. 
i^RYCE,  James,  The  American  Commonwealth,  New  York,  1893. 
Burgess,   John   W.,    Political   Science   and   Constitutional    Law, 

New  York,   1890. 
Davis,  G.  B.,  Outlines  of  International  Law,  New  York,  1887. 
Dillon,  J.  F.,  Law  of  Municipal  Corporations,  Boston,  i8go. 
Ely,  R.  T.  and  Finley,  J.  H.,  Taxation  in  American  States  and 

Cites,  New  York,  1888. 
Gladden,  Washington,  Tools  and  the  Man,  Boston,  1893. 
Hadley,  a.  T.,  Railroad  Transportation,  New  York,   1888. 
Jevons,  W.  S.,  Money   and   the    Mechanism   of   Exchange,    New 

York,  1879. 
Kent,  James,  Commentaries  on  American  Law,  Holmes's  Edition, 

Boston,  1873. 
Lalor,  J.  J.,  Cyclopedia  of  Political  Science,   Political  Economy, 

and  the  Political  History  of  the  United  States,  New  York,  1884. 
Landon,  J.  S.,  The  Constitutional  History  and  Government  of  the 

United  States,  Boston,  1889. 
LlEBER,  F.,  Political  Ethics,  Woolsey's  Edition,  Philadelphia,  1888. 
Lowell,  Josephine,  S.,  Public  Relief  and  Private  Charity,  New 

York,  1884. 
MacDonald,  Arthur,  Abnormal  Man  :  Being  Essays  on  Educa- 
tion and  Crime  and  Related  Subjects,  Washington,  1893. 
MORAWETZ,  Victor,  Law  of  Private  Corporations,  Boston,  1886. 
MULFORD,  E.,  The  Nation,  Boston,  1872. 


viil  Sovic  Works  of  Reference. 


MULHALL,  M.  G.,  Dictionary  of  Statistics,  London,  i8g2. 
Report  of  the  Tilden  Commission  on  the  Government  of  Cities, 

Albany,  1877. 
Round,  W.  M.  F.,  Our  Criminals  and  Christianity,  New  York,  1888. 
Seelye,  Julius  H..  Moral  Science,  New  York,  1882. 
Sherwood,  S.,  The  History  and  Theory  of  Money,  Philadelphia, 

1892. 
Spencer,  Herbert,  Man  versus  the  State,  New  York,  1884. 
Story,  Joseph,  Commentaries  on  the  Constitution  of  the  United 

States,  Cooley's  Edition,  Boston,  1873. 
United  States  Census  Reports,  for  1890. 
Walker,  F.  A.,  Political  Economy,  New  York,  1888. 
Westermarck,  E.,  The  History  of  Human  Marriage,  London,  1891. 
Wharton,  F.,  A  Digest  of  the  International  Law  of  the  United 

States,  Washington,  1886. 
WiLLCOX,  W.  F.,  The  Divorce  Problem,  New  York,  1891. 
Wright,  C.  D.,  Fifth  Report  of  the  Commissioner  of   Labor  on 

Laws  of  Marriage  and  Divorce  in  the  United  States  and  Europe, 

Washington,  1889. 


THE  SPHERE  OF  THE  STATE. 


CHAPTER  I. 

THE  TRUE  CONCEPTION  OF  THE  STATE. 

The  two  ideas  that  lie  at  the  foundation  of  society 
are  the  individuality  of  man  and  the  organic  unity  of 
the  race  ;  and  any  institution,  educational,  political,  or 
religious,  that  ignores  either  the  one  or  the  other  of 
these  ideas  cannot  permanently  prosper.  History  has 
failed  hitherto  to  bring  these  two  truths  into  harmonious 
relations,  and,  so  long  as  this  discord  continues,  there 
is  every  reason  to  suppose  that  the  conflicts  of  history 
will  continue  also. 

The  ancient  world  unduly  emphasized  the  second  of 
these  truths,  while  the  modern  world  equally  errs  with 
reference  to  the  first.  They  have  both  failed  to  produce 
a  symmetrical  and  lofty  civilization,  because  they  have 
tried  the  vain  experiment  of  disjoining  two  things  that 
are  by  nature  inseparable.  The  fact  is,  these  two  truths 
are  complemental  truths.  If  either  is  taken  by  itself  as 
the  whole  truth,  it  is  no  longer  a  truth,  but  by  the  very 
operation  becomes  a  falsehood.  Man  is  not  merely  an 
individual,  or  merely  a  member  of  the  race.  For  he  is 
both  a  person,  having  the  rights  and  duties  of  a  person, 
and  at  the  same  time  a  part  of  a  living  human  brother- 
hood to  which  those  rights  and  duties  are  ever  subordi- 


The  Sphere  of  the  State. 


nate.  The  true  conception  of  the  State  gives  due 
prominence  to  each  of  these  great  truths.  It  recognizes 
the  individuality  of  man,  and  gives  full  scope  for  the 
normal  development  and  use  of  all  his  powers,  strenu- 
ously insisting  that  the  perfection  of  the  individual  is 
the  perfection  of  the  race.  But  it  also  declares  that  the  , 
individual  can  have  no  rights  or  duties  that  conflict 
with  the  good  of  the  whole.  While  it  maintains  that 
the  well-being  of  each  person  is  of  great  moment,  it 
also  asserts  that  the  well-being  of  the  race  is  of  far 
more  importance  than  that  of  any  individual,  and  that 
even  life  and  liberty  are  not  inalienable  rights,  but 
must  all  be  given  up  the  moment  the  race  calls  for  the 
sacrifice. 

The  State,  therefore,  is  not  a  mere  collection  of  indi- 
viduals. No  man,  or  body  of  men,  can  make  the  State. 
For  the  moment  a  man  is  born  into  the  family,  he  is 
born  into  the  State,  and  he  has  no  more  to  do  with  the 
one  act  than  with  the  other.  The  State  is  a  permanent 
institution.  It  is  not  in  the  power  of  man  to  create  it 
to-day  and  destroy  it  to-morrow.  Aristotle  brings  out 
this  truth  with  great  clearness  when  he  says  :  "  It  is 
manifest  that  the  State  is  one  of  the  things  that  exist 
by  nature,  and  that  man  is  by  nature  a  political  animal." 

There  is  in  reality  no  such  thing  as  a  man  without  a 
country.  A  man  alone,  out  of  fellowship  with  other 
men,  is  not  a  man  any  more  than  a  hand  severed  from 
the  body  is  a  hand.  The  true  conception  of  the  State 
is  that  of  an  organism  in  which  each  part  is  at  once  a 
means  and  an  end  to  every  other  part.  Whatever  bene- 
fits one  member  benefits  every  other,  and  whatever 
injures  one  member  injures  every  other.  The  State  is 
the  organic  brotherhood  of  man.  Each  individual  in 
it  is  dependent  upon  all  the  others,  and  all  the  others 


The  True  Conception  of  the  State.        ^  3 

are  dependent  upon  him.  No  man,  however  much  he 
may  try  to  do  so,  can  Hve  unto  himself.  As  another 
expresses  it :  "  There  can  be  no  blessing  nor  calamity, 
no  deed  of  virtue  or  of  vice,  no  birth  nor  death,  though 
on  another  continent,  or  in  a  distant  isle  of  the  sea,  but 
that  brings  its  living  influence  to  each  one  of  us  and  to 
every  member  of  the  race. ' ' 

In  a  certain  sense  of  the  term,  the  State  is  one  and 
universal.  It  is  co-extensive  with  the  human  race,  and 
nations  may  come  into  being  and  disappear,  govern- 
ments rise  and  fall,  institutions  grow  old  and  perish, 
but  the  State  survives  them  all.     It  goes  on  forever. 

In  another  sense  of  the  term,  the  State  is  manifold. 
That  is,  there  may  exist  at  any  given  period  many 
distinct  divisions  of  mankind  that  are  properly  called 
States,  the  number  greatly  varying  from  time  to  time 
with  the  course  of  history. 

But  just  at  this  point  in  our  discussion  we  shall  avoid 
much  confusion  of  thought  by  carefully  observing  that 
when  we  are  speaking  of  the  true  conception  of  the 
State,  we  are  not  regarding  the  State  exclusively  from 
either  the  one  or  the  other  of  these  two  standpoints, 
but  pre-eminently  as  an  induction  from  observed  facts. 
From  the  observed  fact  that  ever>'  man  is  born  a  mem- 
ber of  a  family,  and  the  added  fact  that  he  is  so  made 
that  he  must  live  in  a  State,  we  infer  that  the  organiza- 
tion that  binds  men  together  and  has  supreme  control 
over  their  relations  to  one  another  is  rightly  called  a 
brotherhood.  It  is  not  claimed,  of  course,  that  any  ex- 
isting State  fully  realizes  this  conception.  But  just  as  a 
man  approaches  perfection  as  a  man  in  proportion  as  he 
realizes  the  idea  of  a  brother  in  all  his  thoughts  and 
acts,  so  it  is  with  a  State.  If  perfectly  developed,  a 
State  would  be  a  perfect  brotherhood.     It  is  the  duty, 


The  Sphere  of  the  State. 


however,  of  every  State  to  regard  itself  as  a  brother- 
hood, and  come  as  near  as  the  given  conditions  and 
limitations  will  admit  to  its  full  realization. 

Only  from  the  conception  of  the  State  as  an  organism, 
as  a  brotherhood  of  man,  can  we  obtain  a  true  con- 
ception of  the  relation  of  the  State  to  its  individual 
subjects.  We  easily  see  from  this  conception  that  the 
supreme  control  of  all  persons  and  commodities  must 
be  with  the  State  ;  that  there  can  never  be  an  individual 
right  to  anything  in  the  State  that  is  not  subordinate 
to  the  right  of  the  State.  For  the  brotherhood  would 
not  be  able  to  accomplish  the  ends  of  a  brotherhood,  if 
it  did  not  possess  the  supreme  control  over  the  property 
and  lives  of  its  individual  members.  If  it  should  in 
any  way  lose  this  control,  it  would  cease  to  be  a  brother- 
hood. The  very  thing  that  makes  it  a  brotherhood 
would  have  disappeared.  Sovereignty,  then,  is  the 
essential  attribute  of  a  State  ;  and  the  loss  of  sovereignty 
is  the  annihilation  of  the  State.  Unless  the  State  has 
sovereign  control  over  its  subjects,  it  has  no  power 
to  compel  obedience  to  its  mandates  or  punish  diso- 
bedience ;  and  thus  no  power  to  protect  the  property 
of  its  citizens,  or  defend  their  lives. 

No  error  is  greater  than  to  hold  that  there  is  any 
such  thing  as  a  limited  sovereignty.  It  is  a  contradic- 
tion in  terms.  That  only  is  sovereign  which  is  without 
limit,  and  there  is  no  power  on  earth  to  limit  the  State. 
Complete,  unlimited  sovereignty  over  all  persons  is 
the  one  essential  thing  about  a  State.  If  it  loses  this, 
it  loses  itself.  It  has  ceased  to  be  a  State,  and  has 
become  a  vassal  to  some  other  State.  When  a  State 
revolutionizes  its  government  it  does  not  lose  its  sov- 
ereignty. Sovereignty  is  in  the  people  in  their  organic 
capacity  as  a  State,  and  not  in  the  government.     It 


The  True  Conception  of  the  State. 


simply  obliges  the  apparent  representative  of  that 
sovereignty  to  give  place  to  the  real  representative. 
Each  State  must  be  the  final  arbiter  of  all  its  disputes 
with  other  States.  No  international  law  even  can 
rightly  become  obligatory  upon  the  subjects  of  a  State 
until  it  has  been  sanctioned  by  the  State,  in  accordance 
with  the  forms  which  it  has  itself  prescribed  for  so 
doing.' 

Nor  is  there  such  a  thing  as  a  divided  sovereignty. 
No  part  of  a  State  can  secede  from  the  whole  State  any 
more  than  the  fingers  can  secede  from  the  hand  or  the 
arm  from  the  body.  If  a  secession  does  take  place,  and 
has  vigor  and  energy  enough  to  maintain  itself,  it  is 
not  the  secession  of  a  part  of  a  State  from  the  whole, 
but  the  birth  of  a  new  State.  There  is  no  division  of 
the  sovereignty.  The  sovereignty  of  each  is  one  and 
indivisible.  Every  State,  by  its  very  natture,  has  un- 
limited and  undivided  power  over  every  individual 
subject  within  its  jurisdiction,  over  every  institution 
that  its  subjects  may  establish  within  its  territory,  and 
over  every  commodity  that  exists  within  that  territory. 

This  is  accounted  by  many  ' '  a  hard  doctrine. ' '  They 
reject  it  on  the  ground  that  it  destroys  individual 
rights,  and  makes  a  man  a  slave,  a  mere  machine.  But 
the  fact  is,  the  doctrine  is  the  sole  foundation  and 
support  of  human  liberty.  Take  away  sovereignty 
from  the  State  and  liberty  perishes.  The  difference 
between  liberty  and  anarchy  is  that  the  one  is  freedom 
under  law,  and  the  other  freedom  without  law.  Deprive 
the  State  of  the  power  to  make  and  execute  the  law, 

'  Note.— Unfortunately  the  word  State  is  often  applied  in  this 
country  to  its  several  subdivisions.  The  term  is  not  so  used  in 
the  text.  Such  subdivisions  are  more  properly  designated  by 
the  term  commonwealths. 


The  Sphere  of  the  State. 


and  you  leave  each  individual  to  be  a  law  unto  himself. 
You  reduce  him  to  the  status  of  a  savage.  At  no  time 
in  histor}'  has  human  liberty  been  so  full  and  general 
as  now,  and  yet  the  sovereignty  of  the  modern  State  is 
confessedly  the  most  complete  and  absolute  of  which 
the  world  has  ever  had  any  knowledge.  "It  exempts, ' ' 
as  Prof.  Burgess  expresses  it  in  his  recent  invaluable 
work  on  Political  Science,  "no  class  or  person  from 
its  jurisdiction.  It  sets  exact  limits  to  the  sphere  in 
which  it  permits  the  individual  to  act  freely.  It  is  ever 
present  to  prevent  the  violation  of  those  limits  by  any 
individual,  to  the  injury  of  the  rights  and  liberties  of 
another  individual  or  of  the  welfare  of  the  community. ' ' 
It  is  not  too  much  to  say  that  the  liberties  of  a  people 
are  and  always  have  been  commensurate  with  their 
sovereignty  in  their  organic  capacity  as  a  State.  In 
ancient  times  the  sovereignty  of  the  State  was  usurped 
by  the  ruler  or  by  a  privileged  class,  and  liberty  all 
but  perished.  When,  however,  the  idea  began  to  dawn 
upon  the  world  that  every  man  is  a  brother,  and  that 
the  true  State  is  a  brotherhood,  the  sovereignty  of  this 
■  brotherhood  began  to  assert  itself  and  liberty  revived. 
And  the  more  completely  this  conception  of  the  State 
is  realized  among  any  people,  the  more  absolute  their 
sovereignty  becomes,  and  the  more  perfect  and  secure 
become  their  liberties. 

With  these  considerations  before  us  it  is  easy  to  see 
the  falsity  of  the  doctrine  of  ' '  inalienable  rights. ' '  The 
signers  of  the  Declaration  of  Independence  declare  that 
"  life,  liberty,  and  the  pursuit  of  happiness  "  are  such 
rights.  The3^  are,  to  be  sure,  the  natural  rights  of 
every  individual,  but  a  natural  right  is  not  of  necessity 
an  absolute  right.  All  of  these  rights  are  ultimately 
resolvable  into  a  State  right.      There  is  no  way  of 


The  True  Conceptioii  of  the  State.  7 

making  the  lives  and  property  of  individuals  secure, 
unless  the  State  has  the  power  to  take  them  both  away 
whenever  the  welfare  of  the  community  requires  it. 
We  cannot  escape  the  conclusion,  however  much  we 
may  wish  to  do  so,  that  ever>'thing  in  the  territory  of 
the  State  belongs  ultimately  to  the  State  and  is  always 
under  the  supreme  control  of  the  State  ;  in  other  words, 
that  ever>'thing  in  the  State  belongs  to  and  should  be 
used  for  the  good  of  the  whole  people.  Whether  indi- 
vidual possession  and  use  can  justly  be  allowed,  depends 
solely  on  the  answer  to  the  question.  Will  the  good  of 
the  brotherhood  be  best  subserved  thereby  ?  It  is  not 
only  the  right  but  the  duty  of  the  State  to  abolish  all 
private  possession  and  use  the  moment  any  other  sys- 
tem will  better  promote  the  well-being  of  the  people. 
Individual  ownership  and  control,  if  allowed,  can  never 
be  absolute.  No  person  can  ever  have  the  right,  for 
example,  to  use  his  property  for  the  degradation  and 
debasement  of  the  community,  or  for  any  other  purpose 
than  the  well-being  of  himself  and  all  those  over  whom 
he  has  an  influence.  If  a  person  should  bequeath  five 
million  dollars  worth  of  real  estate  in  New  York  City 
to  found  and  perpetually  maintain  establishments  for 
the  promotion  of  any  crime,  by  the  very  act  he  would 
have  so  abused  the  privilege  of  individual  ownership 
and  control,  and  so  diverted  the  property  of  the  State 
from  subserving  the  good  of  the  State,  that  the  State, 
through  its  government,  should  nullify  the  act  of  the 
individual  and  devote  its  own,  by  its  own  act,  to  its 
own  well-being  and  advancement.  In  the  same  way  we 
see  that  even  the  children  in  the  State  do  not  belong 
exclusively  to  their  parents,  but  to  the  State.  No 
parent  has  the  right  absolutely  to  determine  what  his 
child  shall  eat  or  wear,  what  kind  of  medicine  it  shall 


8  TJic  Sphere  of  the  State. 

have  when  sick,  or  where  and  how  it  shall  be  educated. 
The  State  alone  has  absolute  control  of  the  children,  and 
should  allow  their  parents  to  be  their  guardians  for  a 
certain  stated  period,  only  when  it  is  clear  that  such  a 
method  of  procedure  will  best  develop  the  children 
themselves  and  most  advance  the  good  of  all. 

Having  thus  set  forth  the  true  conception  of  the  State 
as  an  organic  brotherhood  and  having  described  and 
illustrated  at  some  length  its  leading  characteristics, 
let  us  next  ask  ourselves  the  question  :  What  light 
does  this  conception  throw  upon  the  formation  of 
States  ?  How  would  it  determine  the  boundaries  of  a 
State  or  justify  the  formation  of  a  new  State  ?  In  other 
words,  how  are  we  to  apply  this  conception  of  the  State 
to  the  world  as  it  is  and  determine  the  number  and 
limits  of  the  States  that  may  justly  be  formed  in  it  ? 

In  the  first  place,  let  us  observe  that  the  matter  of 
the  boundaries  of  States  is  not  one  that  should  be  set- 
tled solely  by  geography. 

Undoubtedly  the  military  problems  of  Europe  would 
be  greatly  simplified  if  Spain,  by  the  absorption  of  Por- 
tugal, should  extend  its  territory  to  the  Atlantic  ;  Ger- 
many should  take  possession  of  Switzerland,  so  as  to 
reach  the  western  Alps  ;  France  should  extend  itself  to 
the  mouth  of  the  Rhine,  and  the  other  great  States 
should  enlarge  their  jurisdiction  in  a  similar  manner. 
But  it  is  by  no  means  clear  that  the  good  of  humanity 
requires  an  absorption  of  the  smaller  powers.  Mere 
land  cannot  make  a  nation.  Geographical  situation 
counts  for  much,  but  something  far  superior  to  locality 
determines  a  nation's  habitat.  True,  rivers  favor  inter- 
course and  mountains  interrupt  it.  But  why  should 
the  Rhine  separate  States  and  not  the  Elbe  and  the 
Seine  ?     Nothing  but  the  course  of  history  has  deter- 


The  True  Conceptio7i  of  the  State.  9 

mined  that  the  Mississippi  and  the  Ohio  do  not  separate 
nations  as  well  as  the  St.  Croix  and  the  Rio  Grande. 
To  accept  the  doctrine  that  the  territory  of  States  ought 
always  to  be  determined  by  natural  boundaries  would 
occasion  endless  strife.  Whenever  a  nation  had  the 
power  to  extend  itself  to  reach  a  certain  river  or  moun- 
tain, it  would  be  adjudged  to  have  the  right.  A  true 
State  cannot  be  laid  out  on  the  map  once  for  all  in  this 
abitrary  manner.  The  earth  was  made  for  man,  not 
man  for  the  earth. 

It  would  be  equally  erroneous  to  hold  that  the  divi- 
sion into  States  should  be  determined  solely  by  race. 
This  is  not  the  case  now,  and  there  is  no  good  reason 
for  maintaining  that  it  ought  to  be  so  in  the  future.  In 
ancient  times  the  race  idea  played  an  important  part  in 
the  formation  of  States.  At  Sparta  and  Athens  all  the 
citizens  were  essentially  of  the  same  blood,  but  since  the 
coming  of  Christianity  the  case  has  been  wholly  dif- 
ferent. Changes  of  frontier,  have  had  comparatively 
little  to  do  with  ethnographic  tendency.  An  English- 
man of  to-day  is  not  a  Briton,  an  Anglo-Saxon,  a  Dane, 
or  a  Norman.  A  Frenchman  is  neither  a  Gaul,  a  Frank, 
nor  a  Burgundian.  A  German  is  neither  a  Teuton,  a 
Celt,  nor  a  Slav.  And  no  one  can  accurately  determine 
how  many  races  have  intermingled  to  form  an  Ameri- 
can. The  fact  is,  a  pure-blooded  race  nowhere  exists 
outside  of  some  such  place  as  the  jungles  of  Africa. 
All  the  great  modern  States  are  conglomerates.  It  may 
truthfully  be  said  that  the  most  civilized  and  progres- 
sive nations  of  the  world  to-day  are  those  whose  blood 
is  most  mixed. 

To  hold  that  family  connection  is  the  basis  of  legiti- 
macy in  the  formation  of  States  would  be  to  deny  the 
right  of  expatriation,  and  bring  the  world  into  subjec- 


lo  TJic  sphere  of  the  State. 

tion  to  as  great  a  chimera  as  the  divine  right  of  kings. 
Civilization  would  suffer  an  irreparable  loss  if  the 
Statehood  of  a  people  were  to  be  decided  simply  by 
their  ancestral  descent  irrespective  of  their  own  wishes 
or  the  wishes  of  humanit}^  at  large. 

Equally  untenable  is  the  position  that  language  is 
the  true  basis  upon  which  to  make  the  division  into 
States.  As  Ernest  Renan  so  forcibly  expresses  it, 
' '  Language  invites  to  union  ;  it  does  not  compel  it. ' ' 
No  country  perhaps  is  more  truly  a  State  than  Switzer- 
land, though  three  or  four  languages  are  spoken  by  its 
people.  On  the  other  hand,  England  and  the  United 
States,  though  of  essentially  the  same  tongue,  are 
clearly  not  adapted  to  form  a  single  nation.  A  people 
may  have  the  same  thoughts  and  affections  and  still 
have  no  common  speech,  and  they  may  have  far  differ- 
ent feelings  and  ambitions  and  speak  the  same  tongue. 
There  is  something  in  man  much  superior  to  language. 
He  is  a  human  being  before  he  uses  language,  and  it  is 
of  comparatively  little  moment  in  what  tongue  he  gives 
expression  to  his  thoughts. 

Nor  does  religion  furnish  such  a  standard.  It  is  not 
too  much  to  affirm  that  religion  is  the  most  potent  factor 
in  human  history.  It  is  far  stronger  than  locality,  or 
race,  or  language.  But  still  it  is  not  powerful  enough 
to  bind  people  together  into  States.  In  order  to  see 
the  absurdity  of  making  religion  the  basis  upon  which 
to  form  States,  we  need  only  to  think  of  the  confusion 
and  loss  that  would  inevitably  result  from  dividing  up 
the  earth  into  as  many  States  as  there  are  religious 
sects,  and  obliging  the  adherents  of  each  to  have  their 
own  separate  territory  and  government.  In  early  times 
to  disown  the  religion  was  to  disown  the  family  and 
nation.     To  refuse  to  swear  at  the  public  altar  at 


The  Trice  Conception  of  the  State.         1 1 

Athens  was  to  be  no  longer  an  Athenian.  Even  in 
the  Middle  Ages  he  was  not  a  good  Venetian  who  did 
not  swear  by  St.  Mark.  But  we  must  bear  in  mind 
that  to  worship  according  to  the  prescribed  rites  was 
to  them  what  the  taking  of  the  oath  of  allegiance  is  to 
us,  or  the  rendering  of  military  service — not  what  we 
now  mean  by  religion.  The  Roman  Empire  learned 
the  lesson,  although  with  difl5culty,  that  a  man  could 
be  a  good  Roman  and  still  not  be  a  worshipper  of 
Jupiter  Olympus.  In  our  time  we  are  seeing  it  demon- 
strated that  a  Catholic  may  be  a  good  Englishman, 
a  Protestant  a  good  Frenchman,  and  an  Israelite  a 
good  American.  For  religion  is  fast  coming  to  be 
considered  what  it  really  is,  something  that  must  be 
self-adopted,  if  adopted  at  all — an  individual  matter, 
that  from  the  very  nature  of  the  case  can  not  be 
determined  by  any  outside  power. 

In  the  light  of  the  true  conception  of  the  State  as  a 
brotherhood,  we  see  at  once  that  the  ultimate  ground 
for  the  formation  of  States  is  the  needs  of  this  brother- 
hood. There  should  be  as  many  particular  brother- 
hoods in  the  world  as  the  good  of  the  universal 
brotherhood  requires.  Geography  alone  should  not 
determine  their  number,  nor  language,  nor  religion. 
These  are  all  important  and  should  be  duly  considered 
in  deciding  what  the  needs  of  the  brotherhood  really 
are.  But  whenever  it  is  clear  that  the  good  of 
humanity  will  best  be  furthered  by  the  breaking  up  of 
old  States  and  the  formation  of  new  ones,  neither  the 
Rhine  nor  the  Alps,  neither  Gibraltar  nor  the  Great 
Wall,  neither  the  coffin  of  Mahomet,  nor  the  chair 
of  St.  Peter,  should  be  allowed  to  prevent  it.  Every 
community  becomes  truly  civilized  in  proportion  as  it 
approaches  the  idea  of  a  brotherhood    and  it  should 


t  i  The  Sphc7'e  of  the  State. 


use  every  means  in  its  power  to  actualize  this  idea  in 
all  its  relations  to  other  coninuinities  and  to  its  own 
individual  members.  If  the  people  of  any  given  locality 
can  far  more  effectually  actualize  this  idea  and  help  on 
the  civilization  of  the  world  by  a  separate  and  inde- 
pendent existence  as  a  State,  it  is  not  only  their  right, 
but  their  duty  to  assume  the  functions  of  a  State  and 
betake  themselves  at  once  to  the  fulfilment  of  their 
mission.  Let  us  not  fall  into  the  error  of  supposing, 
however,  that  this  doctrine  teaches  that  any  people 
have  a  right  to  form  a  State  whenever  they  please, 
or  to  attach  themselves  to  a  State  already  in  existence 
as  they  please.  A  band  of  adventurers  could  not  settle 
on  an  uninhabited  island  of  the  Pacific,  even  though 
before  undiscovered,  and  justly  form  a  State  there  at 
their  own  option.  The  right  of  any  particular  com- 
munity is  always  limited  by  the  right  of  humanity. 
But  the  right  to  form  a  new  State  or  extend  the  bound- 
aries of  an  old  one  is  a  perfectly  justifiable  right,  if  the 
reign  of  law  and  order  over  the  earth  will  be  hastened 
by  so  doing — if  the  civilization  of  mankind  will  be 
most  effectually  advanced  thereby. 

The  conception  of  the  State  as  a  brotherhood  also 
clearly  teaches  us  the  true  doctrine  concerning  the  dis- 
solution of  States.  No  people  can  justly  hinder  the 
annihilation  of  a  brotherhood  when  the  good  of  the 
universal  brotherhood  requires  it.  They  have  no  just 
claim  to  continued  existence  as  a  State  after  they  have 
ceased  to  further  the  welfare  of  man,  any  more  than  an 
eye  has  to  be  an  eye  after  it  has  ceased  to  see,  or  an  ear 
to  be  an  ear  after  it  has  ceased  to  hear.  Nor  is  there 
any  human  right  to  the  status  of  barbarism.  The  sav- 
ages of  America  and  the  barbaric  hordes  of  Africa  owe 
it  to  the  civilized  world  to  become  civilized.     The  good 


The  Trtie  Conception  of  the  State.         1 3 

of  mankind  requires  it.  If  they  cannot  civilize  them- 
selves, they  should  submit  to  the  powers  that  can  do  it 
for  them.  If,  after  all  due  patience  and  forbearance 
have  been  exercised  toward  them,  and  every  means  of 
influence  and  force  has  been  exhausted  in  the  endeavor 
to  induce  them  to  revere  and  obey  law,  they  still  resist, 
the  civilized  States  should  clear  the  territory  of  their 
presence  and  make  it  the  abode  of  civilized  man.  The 
States  that  are  promoting  the  progress  of  mankind 
should  not  hesitate  to  pursue  such  a  policy  whenever 
it  becomes  clear  that  the  end  desired  can  not  be  accom- 
plished in  any  other  manner.  ' '  There  is  a  great  deal 
of  weak  sentimentality  abroad  in  the  world,"  says  Prof. 
Burgess,  in  the  work  referred  to  above,  ' '  concerning 
this  subject.  So  far  as  it  has  any  intellectual  basis,  it 
springs  out  of  a  misconception  of  the  origin  of  rights  to 
territory,  and  a  lack  of  discrimination  in  regard  to  the 
capacities  of  races.  It  is  not  always  kept  in  mind  that 
there  can  be  no  dominion  over  territory  or  property  in 
land  apart  from  State  organization,  that  the  State  is 
the  source  of  all  titles  to  land  and  all  powers  over  it. 
The  fact  that  a  politically  unorganized  population 
roves  through  a  wilderness,  or  camps  within  it,  does  not 
create  rights,  either  public  or  private,  which  a  civilized 
State  pursuing  its  great  world  mission  is  under  any 
obligations,  legal  or  moral,  to  respect."  It  is  clearly 
against  the  interests  of  humanity  to  allow  a  few  thou- 
sand incorrigible  savages  the  right  to  the  possession  of 
a  territory  which,  if  brought  under  cultivation,  could 
support  millions  of  civilized  and  law-abiding  human 
beings.  And  nothing  is  more  unreasonable  than  to 
suppose  that  a  few  trinkets  will  enable  them  to  make  a 
valid  transfer  of  that  right.  Those  States  that  most 
advance  the  brotherhood  of  man  are  the  civilized  States. 


14  The  Sphere  of  the  State. 

The  earth  belongs  to  them  for  that  reason,  and  not  to 
barbarians.  No  one  can  donbt  1)ut  that  the  world  would 
be  innnensely  advanced  in  happiness  and  civilization  if 
obedience  to  law  and  the  liberty  that  comes  from  such 
obedience,  could  be  established  over  every  portion  of 
the  globe.  The  continued  existence  of  a  people  as  a 
State,  who  show  a  permanent  incapacity  to  bring  about 
any  such  condition,  is  an  injury  to  the  progress  of 
humanity.  It  is  not  only  the  right  but  the  duty  of  the  , 
civilized  States  of  the  world  to  assume  sovereignty  over  / 
such  a  people,  and  for  the  good  of  mankind,  as  well  as 
the  people  themselves,  force  them  to  submit  to  the  de- 
mands of  a  civilized  life. 

It  would  be  a  crime  against  humanity  for  the  nations 
of  Europe  to  allow  the  savage  hordes  of  Africa,  who, 
according  to  some  estimates,  twice  outnumber  the  com- 
bined population  of  North  and  South  America,  to  con- 
tinue uninterrupted  their  degenerate  and  brutal  careers. 
States  that  are  prosperous  and  happy  are  no  more 
justified  in  leaving  the  rest  of  the  world  to  take  care  of 
itself  than  are  individuals.  They  have  an  obligation 
to  discharge  to  their  degraded  and  unfortunate  fellows, 
wholly  apart  from  any  recompense  or  gratitude  even 
that  may  come  to  them  from  the  people  themselves  for 
so  doing.  The  solemn  fact  is  that  by  far  the  larger 
part  of  the  surface  of  the  earth  is  inhabited  by  people 
who  have  shown  by  centuries  of  incompetency  their 
inability  to  progress,  and  who  will  remain  forever  in 
stagnation  or  chaos,  unless  some  outside  power  comes 
to  the  rescue. 

History  abundantly  testifies  that  the  Teutonic  nations 
are  the  natural  founders  of  States.  They  are  en- 
dowed in  a  pre-eminent  degree  with  the  two  great  qual- 
ities of  justice  and  moderation,  which  especially  fit  them 


The  Trtie  Conception  of  the  State.         15- 

for  this  great  work.  Almost  every  leading  State  of 
modem  times  owes  its  organization  to  their  influence. 
And  if  history  teaches  us  anything  on  this  subject, 
Providence  has  clearly  entrusted  to  them  the  mission  of 
conducting  the  political  civilization  of  the  world.  In 
the  furtherance  of  this  mission  it  is  both  their  right  and 
their  duty  not  to  leave  the  barbaric  nations,  now  so  fully 
revealed  to  their  knowledge,  longer  to  defile  the  earth 
with  their  abominations,  or  even  the  semi-barbaric, 
but,  without  undue  haste  in  assuming  power  and  with- 
out exercising  the  power  assumed  for  any  other  purpose 
than  the  well-being  of  man,  they  should,  at  all  hazards, 
compel  these  degenerate  races  to  submit  to  the  de- 
mands of  a  civilized  life.  And  they  should  not  hesitate 
because  the  people  concerned  do  not  extend  them  an 
invitation.  They  are  themselves  the  best  judges  of 
the  proper  time  to  interfere  and  are  untrue  to  their 
mission  if  they  shirk  the  responsibility  of  making  the 
decision.  If  a  foot  does  not  do  the  work  of  a  foot,  it  is 
no  longer  a  foot.  If  it  is  an  injury  to  the  rest  of  the 
body ;  if,  instead  of  helping  its  growth  and  develop- 
ment, it  perpetually  contributes  to  its  degeneracy  and 
/decay,  it  is  the  duty  of  the  head  and  all  the  other  organs 
ot  the  body  to  unite  with  the  hands  in  severing  the  of- 
fending member  from  all  connection  with  the  body.  It 
has  no  right  to  exist  as  a  foot,  except  as  it  contributes 
to  the  good  of  the  whole  body.  Failing  in  this,  it 
should  perish.  So  it  should  be  with  the  States  that  do 
not  and  can  not  fulfil  the  mission  of  States.  The  right 
to  subjugate  them  is  indisputable,  and  the  division  of 
their  territory  and  people  among  other  existing  States, 
is  not  only  a  justifiable  act,  but  an  imperative  obliga- 
tion. For  it  can  easily  be  shown  that  the  well-being 
of  mankind,  the  good  of  the  universal  State,  would  be 


1 6  The  Sphere  of  the  State. 

injured  by  their  continued  existence,  and  that  the  gifts 
of  nature  to  be  found  among  them  can  be  made  to  con- 
tribute far  more  effectually  than  they  now  do  to  the 
progress  of  mankind. 

The  conception  of  the  State  as  an  organic  brother- 
hood also  makes  clear  and  vivid  the  true  ends  of  the 
State.  The  chief  and  ultimate  end  of  the  State,  to 
which  all  other  ends  must  be  subordinate,  is  evidently 
the  perfection  of  the  brotherhood,  the  bringing  of  man 
here  upon  the  earth  to  the  highest  degree  of  civiliza- 
tion of  which  he  is  capable.  The  annihilation  or  con- 
tinuance of  a  State  justly  depends  on  whether  it  is 
doing  all  that  can  be  done  under  the  given  limitations 
to  advance  humanity  to  the  full  perfection  of  all  its 
powers.  Every  true  State  is  struggling  more  or  less 
consciously  for  the  attainment  of  this  end,  and  has  been 
from  the  dawn  of  history.  The  States  of  to-day  excel 
all  others  of  which  we  have  any  knowledge,  because 
they  come  far  nearer  than  any  of  their  predecessors  to 
the  realization  of  an  organic  brotherhood,  though  cen- 
turies, or  even  cycles,  may  elapse  before  the  conception 
is  brought  to  anything  like  its  full  fruition. 

The  other  ends  of  the  State  may  properly  be  regarded 
as  the  means  for  the  attainment  of  this  ultimate  end. 
The  perfection  of  the  brotherhood  can  only  be  estab- 
lished by  bringing  about  the  perfect  union  of  the  suprem- 
acy of  the  brotherhood  and  the  liberty  of  all  its 
individual  members.  No  State  can  reach  perfection 
except  as  it  realizes  perfect  sovereignty  and  perfect 
liberty,  and  in  this  order.  Any  attempt  to  reverse  this 
order  must  meet  wdth  signal  defeat.  The  first  thing, 
then,  for  the  State  to  do  is  to  establish  its  sovereignty. 
Before  this  is  accomplished  there  can  be  no  progress 
made  toward  the  civilization  of  its  subjects,     A  rever- 


The  Trtte  Conception  of  the  State.        1 7 

ence  for  law  and  a  disposition  to  obey  it  are  the  first 
requisites  of  progress,  and  a  State  first  issues  out  of 
barbarism  when  the  people  begin  to  recognize  this  fact. 
The  second  thing  for  the  State  to  do  is  to  make  clear 
and  definite  the  sphere  of  liberty,  and  see  to  it  that  each 
of  its  subjects  has  the  fullest  opportunity  for  the  de- 
velopment and  use  of  all  his  powers.  As  a  matter  of 
fact  there  never  has  been,  and  there  never  can  be,  any 
true  liberty  among  human  beings  that  does  not  come 
through  the  State.  Barbaric  freedom  always  results  in 
discord  and  slavery  and  stagnation.  But  the  freedom 
that  is  the  creation  of  the  State,  gives  peace  and  liberty 
and  progress. 

With  such  ends  as  these  to  accomplish  it  must  be 
acknowledged  that  the  true  State  is  the  grandest  of  all 
earthly  institutions.  For  it  recognizes  every  person 
as  a  brother  and  accords  him  his  true  place  in  the  uni- 
versal brotherhood  of  man.  It  exempts  no  human  be- 
ing, high  or  low,  from  its  jurisdiction.  It  controls  all 
persons  and  determines  all  their  mundane  relations.  It 
secures  for  them  all  their  rights  and  creates  for  them 
all  their  liberties.  As  it  expands  its  sway  over  the  earth, , 
the  larger  becomes  the  sphere  of  individual  opportunity 
and  the  higher  rises  the  tide  of  human  prosperity  and 
advancement.  The  more  fully  this  conception  of  the 
State  takes  possession  of  the  thoughts  of  men  and  the 
more  strenuously  they  labor  to  bring  it  to  a  realization, 
the  sooner  will  oppression  and  barbarism  disappear  and 
the  blessings  of  a  true  civilization  fill  the  earth  with 
righteousness  and  peace. 


CHAPTER  II. 

THE  STATE  IN   ITS   RELATION  TO  THE  GOVERNMENT. 

In  spite  of  the  fact  that  so  much  has  been  written  in 
modern  times  upon  the  origin  and  function  of  govern- 
ment, it  is  hardly  an  exaggeration  to  say  that  no  term  in 
poHtical  science  is  so  commonly  misapprehended  or  so 
frequently  misapplied.  It  is  by  no  means  a  rare  occur- 
rence for  jurists  even  to  speak  of  the  State  when  they 
mean  the  government,  and  use  the  word  government 
when  they  are  in  reality  talking  about  the  State.  The 
consequence  is  that  many  rights  and  duties  are  as- 
cribed to  the  State  that  belong  only  to  the  government, 
and  many  to  the  government  that  belong  only  to  the 
State. 

In  order  to  avoid  confusion  on  this  subject  and  ade- 
quately appreciate  the  fundamental  and  all-important 
distinction  between  the  State  and  the  government, 
we  must  keep  vividly  before  the  mind  our  conception 
of  the  State  as  an  organism,  a  brotherhood  of  man. 
All  authority  over  mundane  affairs,  as  we  have  seen,  is 
with  the  State,  and  cannot  rightly  be  exercised  by  any 
other  power.  The  moment  the  State  loses  this  author- 
ity it  loses  itself.  It  cannot  delegate  this  sovereignty 
to  any  agent.  For  then  the  agent  would  become  sover- 
eign and  the  State  would  annihilate  itself  as  a  State 
by  becoming  a  vassal.     But  the  State  must  express 

i8 


The  State  in  its  Relation  to  Government,    i^ 

itself  in  action.  It  must  have  some  medium  of  com- 
munication with  its  members  and  with  other  States. 
Otherwise  it  would  fail  to  fulfil  its  mission  as  a  State. 
Just  as  a  man  would  fail  to  be  a  man  and  perform  the 
duties  of  a  man  if  he  had  no  way  of  communicating 
his  thoughts  and  purposes  to  his  fellows.  Government 
is  such  a  medium  for  the  State.  Government,  there- 
fore, is  not  the  State  any  more  than  a  man's  words  are 
the  man  himself.  It  is  simply  an  expression  of  the 
State,  an  agent  for  putting  into  execution  the  will  of 
the  State.  The  government,  therefore,  has  no  authority 
of  itself.  All  the  right  it  has  to  represent  the  State  it 
gets  from  the  State  itself,  and  the  State  may  at  any  time 
modify  its  acts,  or,  if  it  wishes  to  do  so,  set  them  aside 
altogether.  The  State  survives  all  changes.  It  cannot 
be  created  to-day  and  destroyed  to-morrow,  but  govern- 
ments can  be.  The  people  of  a  State  can  change  their 
government  and  ought  to  change  it  as  often  as  the 
public  good  requires. 

In  the  light  of  these  considerations  the  errors  in  the 
false  theories  of  government  that  have  been  current  in 
history  are  easily  recognized.  I^et  us  notice  a  few  of 
them. 

Take  the  jure-divino  theory,  or  what  is  commonly 
called  the  theory  of  the  divine  right  of  kings.  Accord- 
ing to  this  view  monarchs  are  the  lineal  descendants 
of  Adam,  the  first  and  divinely  appointed  head  of  man- 
kind. They  receive  their  right  to  rule,  through  him, 
direct  from  heaven,  and  this  right  is  transmitted  from 
father  to  son  in  the  order  of  primogeniture.  It  was 
taught  by  Filmer,  in  the  time  of  Charles  I.,  that  kings 
can  make  no  engagements  with  their  subjects  which 
cannot  be  at  any  time  broken,  a  positive  promise  even 
conferring  no  actual  obligation.     The  majority  of  the 


56  The  Sphere  of  tJie  State. 


monarclis  of  Europe  in  their  public  documents  and  on 
their  coins  give  themselves  the  title  of  kings  dei gratia. 
The  advocates  of  this  theory  of  government  have 
always  based  their  argument  chiefly  upon  the  Scrip- 
tures. But  the  fact  is  the  Scriptures  teach  just  the 
opposite  doctrine.  The  ancient  Hebrews  were  the 
first  people  in  history  to  act  plainly  and  definitely 
on  the  principle  of  popular  sovereignty,  and  to  make  a 
clear  distinction  between  their  government  and  them- 
selves as  a  State.  A  thousand  years  before  Pericles,  by 
popular  vote  they  chose  God  for  their  ruler,  and  after 
the  death  of  Moses  the  choice  was  re-submitted  to  the 
people  every  seven  years.  The  order  of  primogeniture 
among  them,  after  they  became  a  kingdom,  is  far  more 
noticeable  for  its  breach  than  for  its  observance.  Isaac 
was  not  the  oldest  son  of  Abraham,  nor  was  David  of 
Jesse,  nor  Solomon  of  David.  Neither  Tiberius,  to 
whom  Christ  enjoined  men  to  pay  tribute,  nor  Nero, 
whom  Paul  commanded  men  to  obey,  claimed  to  be  mon- 
archs  hy  divine  right.  The  Roman  emperors  knew  of  no 
such  doctrine.  They  always  appealed  in  their  struggles 
to  maintain  themselves  to  the  will  of  the  people.  The 
truth  is,  no  man  or  body  of  men  has  ever  yet  ruled  by 
the  direct  decree  of  the  Almighty,  the  multitudes  in 
history  who  have  strenuously  maintained  such  a  doc- 
trine, to  the  contrary  notwithstanding.  The  ruler  of 
the  English  people  even  to  this  day  still  signs  herself 
"  Victoria,  by  the  Grace  of  God,  Queen  of  England," 
but  no  one  knows  better  than  Her  Majesty  that  if  an 
attempt  should  be  made  to  act  on  the  assumption  of 
divine  right  the  most  disastrous  results  to  royalty  would 
certainly  follow.  The  people  in  their  organic  capacity 
as  States  are  the  only  sovereigns.  It  is  not  within  the 
power  of  the  people,  even  though  they  may  strenu- 


The  State  in  its  Relation  to  Government,    2 1 

ously  desire  to  do  so,  to  make  the  title  true  of  any 
person  or  collection  of  persons  they  may  choose  to  be 
their  governors.  By  the  divine  constitution  of  things 
the  ultimate  responsibility  for  the  nature  and  character 
of  the  government  is  with  the  people,  and  the  responsi- 
bility can  never  be  delegated  by  them  to  any  other 
power. 
^'  In  the  same  way  we  can  see  in  the  light  of  the  true 
view  the  defects  of  the  jure-ecclesiastico  theory  of  the 
nature  of  government.  The  Church,  in  one  sense  of 
the  term,  is  distinct  from  the  State,  neither  one  being 
dependent  upon  the  other.  For  man  is  related  to  an 
extra-mundane  Being  as  well  as  to  other  men.  He  is 
by  nature  a  religious  being  as  well  as  a  political  being, 
and  his  action  in  one  of  these  capacities  need  not  and 
should  not  collide  with  his  action  in  the  other.  But 
when  the  Church  becomes  an  organization  within  the 
territory  of  the  State,  like  all  other  earthly  institutions 
it  immediately  becomes  subject  to  the  State.  When  it 
undertakes  to  dictate  the  form  of  government  or  in 
any  way  designate  who  shall  govern,  it  at  once  tran- 
scends its  own  clearly  defined  limits.  It  usurps  the 
sovereignty  of  the  State,  and  reduces  it  to  the  condi- 
tion of  a  vassal.  Plainly,  then,  neither  the  Pope,  nor 
the  representatives  of  any  other  religious  body,  can 
rightly  make  and  unmake  governments.  ' '  God  has 
not  othen\nse  ordained  the  powers  that  be,"  as  Dr. 
Hickok  so  well  expresses  it,  "than  by  making  men 
social,  rational,  and  free,  and  thus  necessary  to  be 
governed  ;  and  then  in  His  providence  throwing  them 
together  where  they  must  institute  such  government 
and  be  ethically  bound  to  respect  and  obey  it." 

But  the  most  famous,  and  at  the  same  time  most 
widely  influential,  of  all  these   false  theories  of  the 


22  TJie  Sphere  of  the  State. 

origin  of  goveniment  is  the  social-compact  theory,  so 
earnestly  advocated  by  the  philosopher  I^ocke. 
"  Men,"  says  Locke,  "being  by  nature  all  free,  equal, 
and  independent,  no  one  can  be  put  out  of  this  estate 
and  subjected  to  the  political  power  of  another  without 
his  own  consent.  The  only  way  whereby  anyone  divests 
himself  of  his  natural  liberty,  and  puts  on  the  bonds  of 
civil  society,  is  by  agreeing  with  other  men  to  join  and 
unite  into  a  community."  Blackstone  says,  this 
contract,  ' '  though  perhaps  in  no  instance  has  it  ever 
been  formally  expressed  at  the  first  institution  of  a 
State,  yet  in  nature  and  reason  must  be  always  under- 
stood and  implied  in  the  very  act  of  associating  to- 
gether. ' '  The  constitution  of  Massachusetts  contains 
these  words  :  ' '  The  body-politic  is  formed  by  a  volun- 
tary association  of  individuals.  It  is  a  social  compact. ' ' 
Many  other  American  commonwealths  have  embodied 
in  their  constitutions  similar  declarations,  and  some  of 
the  foremost  American  statesmen — Adams  and  Jeffer- 
son, for  example — have  advocated  this  doctrine. 

As  a  theory  of  the  State  it  is,  as  we  have  already 
seen,  utterly  fallacious.  It  led  to  the  French  Revolu- 
tion and  our  late  rebellion  ;  and  whenever  adopted 
must  inevitably  tend  to  national  strife  and  ultimate 
disintegration.  As  a  theory  of  the  government  it  is 
a  true  doctrine,  if  we  mean  simply  the  form  of  the 
government.  It  is  not  left  to  the  people  to  decide 
whether  they  will  have  a  government  or  not,  any  more 
than  it  is  left  to  them  to  determine  whether  or 
not  they  will  live  in  a  State.  The  government  is  a 
necessity  as  truly  as  the  State,  but  people  in  their 
organic  capacity  as  a  State  ought  to  determine  by 
social  compact  not  only  who  are  to  be  their  governors, 
but  also  the  mode  of  their  selection  and  the  sphere  of 


The  State  in  its  Relation  to  Government.    23 

their  activities.  And  they  do  so  to  some  extent  in 
every  State,  and  have  done  so  in  all  ages.  Even  the  most 
absolute  despot  on  the  earth  is  not  ignorant  of  the  fact 
that  the  people  will  find  a  way  to  dispose  of  him  if  he 
goes  beyond  certain  limits. 

The  true  conception  of  the  government,  as  we  have 
shown  above,  is  that  the  government  is  an  organ  of  the 
State.  It  embodies  and  expresses  the  State  just  as 
language  embodies  and  expresses  thought.  However 
good  or  however  bad  the  existing  government  may  be, 
it  is,  nevertheless,  for  the  time  at  least,  the  representa- 
tive of  the  State.  There  was  not  even  a  shadow  of 
truth  in  the  famous  saying  of  I^ouis  XIV.,  "  I  am  the 
State, ' '  but  it  would  have  been  almost  literally  true  if 
he  had  said,  "I  am  the  government,"  All  just  gov- 
ernment is  of  God  through  the  people.  For  man  is  so 
made  by  his  Creator  that  he  must  live  in  a  State,  and 
the  State  must  have  a  government.  So  long  as  a  man 
needs  hands  and  feet,  so  long  the  State  will  need  a 
government.  And  that  is  the  best  government  which 
most  fully  expresses  the  needs  of  the  State,  and  does  all 
that  can  be  done  to  satisfy  those  needs. 

This  view  of  government  makes  clear  the  error  in 
the  position  taken  by  Herbert  Spencer  in  his  Social 
Statics  that  the  object  of  all  government  is  protection  ; 
that  its  chief  and  only  function  is  to  restrain  wrong- 
doers ;  that  the  bad  in  the  State  and  not  the  good  are 
the  only  ones  that  need  a  gov'emment.  The  chief  and 
most  important  function  of  government  is  to  enlighten 
the  people  as  to  what  the  good  of  the  State  requires. 
And  so  long  as  men  are  finite  they  will  need  a  govern- 
ment. The  government  ought  not  to  be  first  a  police- 
man and  then  a  teacher,  but  first  and  mainly  a  teacher, 
and  a  policeman  only  if  needs  be.     For  we  have  no 


24  TJic  Sphere  of  the  State. 

right  to  suppose  that  there  will  ever  come  a  time  in 
this  world  or  any  other  when  men  will  have  no  need 
of  government.  On  the  contrary,  the  more  a  man  ad- 
vances, the  more  civilized  he  grows,  the  more  impera- 
tive does  the  need  become.  The  naked,  filthy  savage 
has  little  need  of  government,  because  his  wants  are 
simple,  and  so  are  his  relations  to  his  fellows.  But  the 
moment  he  begins  to  wear  clothes,  to  build  bridges, 
and  engage  in  commerce,  his  wants  multiply,  the  more 
complex  become  his  relations  to  others,  and  the  greater 
his  need  of  enlightenment  as  to  what  those  relations 
require.  All  history  illustrates  this  truth.  Indeed, 
the  progress  of  a  nation  is  best  measured  by  the  number 
of  laws  to  which  it  is  obedient.  The  very  idea  of  civil- 
ization is  the  supremacy  of  the  State.  It  is  that  con- 
dition of  society  in  which  every  man  lives  and  moves 
and  has  his  being  for  the  good  of  all,  and  all  for  each. 
That  is  not  the  best  government,  therefore,  which 
governs  least,  but,  on  the  contrary,  that  which  enters 
most  deeply  into  the  real  needs  and  daily  interests  of 
its  subjects.  But  the  instant  a  government  begins  to 
seek  the  good  of  some  one  individual,  or  class,  and  not 
the  good  of  all,  that  instant  it  becomes  a  usurpation, 
and  the  right  of  revolution  becomes  a  duty.  No  man, 
or  body  of  men,  can  ever  have  the  right  of  revolution 
against  the  State.  For  such  a  thing  is  an  impossibility. 
But  the  people  may  easily  have  the  right  of  revolution 
against  the  government.  '  They  always  have  this  right 
whenever  the  government  uses  its  power  for  the  sole 
advantage  of  an  individual,  or  clique,  or  party,  and 
whenever  a  change  in  the  government  can  not  be 
effected  in  any  other  manner.  But  there  should  never 
be  a  resort  to  arms  to  eifect  this  revolution  unless  all 
other  means  have  failed,  and  unless  the  future  glory  to 


The  State  in  its  Relation  to  Government.     25 

be  attained  for  the  State  shall  far  outweigh  the  present 
suffering.  In  other  words  the  individuals  of  the  State 
have  never  the  right  to  perform  any  act  that  will  not  in 
the  end  be  a  benefit  to  the  State.  And  if  any  line  of 
conduct  will  clearly  redound  to  the  public  good,  they 
are  unworthy  members  of  the  State  if  they  do  not 
adopt  it  as  their  own,  and  pursue  it  with  all  their 
powers. 

The  government,  then,  being  the  expression  of  the 
State  as  language  is  the  expression  of  thought,  it  will 
naturally  happen  that  the  genius  of  different  States 
will  give  rise  to  different  forms  of  government, 
just  as  different  races  express  their  thoughts  in 
different  ways,  and  thus  originate  a  variety  of  lan- 
guages. It  is  the  purpose  of  this  chapter  mainly  to  un- 
fold and  illustrate  the  ethical  principles  involved  in  the 
formation  and  administration  of  government.  I  shall 
not,  therefore,  attempt  to  discuss  at  any  length  the 
number  of  forms  the  government  may  assume  or  the 
advantages  and  disadvantages  of  each  form.  But 
adopting  the  classification  of  Aristotle  into  Monarchies, 
Aristocracies,  and  Democracies  as  suflSciently  exact  for 
our  purpose,  we  can  easily  see  that  a  State  ought  to 
select  a  monarchic  form  of  government,  or  an  aristo- 
cratic, or  a  democratic,  according  as  its  needs  require. 
The  form  of  government,  however,  is  of  comparatively 
little  moment  provided  the  government  itself  voices  the 
will  of  the  State, — is  of  the  people,  for  the  people,  and 
by  the  best  of  the  people.  It  is  far  from  the  truth  to 
assert  that  that  is  the  best  form  of  government  which 
is  the  best  administered.  That  form  is  the  best  for  any 
State  which  most  fully  attains  the  well-being  of  its 
subjects.  It  by  no  means  follows  that  the  form  that  is 
best  under  one  form  of  circumstances  is  best  under 


26  The  Sphere  of  the  State. 

another.  A  given  State  may  be  acting  under  the 
highest  wisdom  to  change  its  form  with  the  change  in 
circumstances.  Because  a  State  has  had  a  certain  form 
of  government — Republican,  for  example — for  a  series 
of  years,  is  no  sufficient  reason  wh}^  it  should  continue 
that  form.  It  may  easily  happen  that  when  the  cir- 
cumstances and  relations  of  men  grow  more  complex, 
and  the  people  in  the  State  come  to  vary  greatly  in 
nationality,  education,  and  religion,  a  departure  from 
the  original  form  will  far  more  efficiently  promote 
the  general  well-being.  It  is  reasonable  to  expect  that 
as  the  territory  of  a  State  becomes  more  densely  popu- 
lated, the  conditions  of  life  more  severe,  the  relations 
of  the  people  to  one  another  and  to  other  States  more 
intricate  and  perplexing,  the  less  will  become  the  num- 
ber proportionally  who  are  capable  of  deciding  what 
measures  are  best  for  the  State,  or  what  form  of  gov- 
ernment is  best  to  carry  them  into  execution. 

The  right  of  every  member  of  the  State  to  have  a 
voice  in  the  selection,  either  of  the  form  of  government, 
or  the  governors,  is  not  an  inherent  right.  The  doc- 
trine that  all  persons  have  an  inalienable  right  to  par- 
ticipation in  government  is  one  of  those  baseless 
eighteenth-century  doctrines  that  cannot  be  otherwise 
justly  characterized  than  as  pure  fictions.  Although 
strenuously  advocated  by  the  leaders  of  the  American 
and  French  revolutions,  it  was  utterlj^  repudiated  by 
them  as  soon  as  they  had  an  opportunity  to  put  it  into 
practice.  No  nation  of  to-day  acts  on  this  theory,  and 
it  is  not  at  all  likely  that  any  people  will  ever  adopt  it 
in  the  future.  The  right  to  vote  is  a  privilege  granted 
by  the  State  to  such  persons,  or  classes,  as  show  a  capa- 
city to  discharge  political  duty,  to  use  the  power  the 
privilege  confers  for  the  promotion  of  the  public  weal. 


The  State  hi  its  Relation  to  Government.      27 

The  object  of  sufirage  is  to  continue  the  government, 
and  to  increase  and  perpetuate  its  benefits,  not  simply 
to  keep  the  peace.  It  is  vain  to  expect  that  this  object 
can  ever  be  attained  by  universal  suflFrage.  The  fact 
is  that  universal  suffrage  is  as  great  a  chimera  as  the 
so-called  doctrine  of  inalienable  rights.  Even  the  most 
democratic  governments  on  the  earth  deny  sufirage  to 
the  vast  majorit}^  of  their  citizens,  and  no  insignificant 
proportion  of  this  majority  would  be  phj^sically  unable 
to  exercise  the  privilege  even  if  they  had  it.  The  right 
should  be  granted  to  those  only  who  are  capable  of 
understanding  what  the  public  good  requires,  and  who 
give  satisfactory  evidence  that  they  are  willing  to 
devote  their  powers  to  the  attaining  of  that  good. 
Children,  idiots,  insane  persons,  habitual  drimkards, 
and  incorrigible  criminals  should  clearly  not  be  granted 
this  right,  and  there  is  hardty  room  for  reasonable 
doubt  that  an  educational  test  of  some  sort  should  be 
required  of  everj^  voter.  If  a  person  cannot  read  and 
write  well  enough  to  attend  to  his  own  affairs,  it  is  not 
at  all  likely  that  he  knows  enough  to  attend  to  the 
affairs  of  the  government.  Great  caution  should  be 
exercised  in  granting  the  franchise  to  aliens,  especially 
in  localities  where  they  congregate  in  large  numbers. 
For  nothing  can  be  more  injurious  to  the  development 
of  a  nation's  genius  and  institutions  than  to  have  the 
government  of  portions  of  its  territory  in  the  hands  of 
persons  who  are  the  representatives  of  a  foreign  culture 
and  are  striving  to  perpetuate  foreign  ideas. 

It  by  no  means  follows  that  when  the  privilege  of 
voting  has  once  been  granted  it  cannot  be  taken  away. 
Every  person  should  be  deprived  of  it  who  wilfully 
abuses  the  privilege,  whatever  his  station,  or  color,  or 
nationality.     For  the  moment  a  man  ceases  to  have 


The  Sphere  of  the  State. 


either  the  abilit)^  or  the  disposition  to  advance  the  good 
of  the  State,  he  has  forfeited  all  claim  to  the  privilege 
of  voting  for  the  rulers  of  the  State,  and  it  is  the  duty 
of  the  government,  acting  for  the  State,  to  see  that  the 
statutes  no  longer  allow  him  to  exercise  the  right. 
But  all  the  members  of  the  State  should  be  represented 
in  the  government  For  no  government  is  worthy  of 
being  a  government  that  does  not  represent  the  whole 
people,  and  strive  to  meet  and  satisfy  to  the  best  of  its 
ability  the  actual  needs  of  every  individual.  The  true 
representative,  however  he  may  be  chosen,  is  not  a 
representative  of  himself,  or  his  district,  or  even  his 
party,  but  of  the  State.  And  he  acts  unworthily  of  his 
trust  if  he  uses  his  influence,  or  casts  his  vote  for  any 
measure  that  he  does  not  clearly  see  to  be  for  the  good 
of  the  whole  people. 

Much  has  been  said  in  recent  years  about  "  the 
inviolability  of  vested  rights."  The  doctrine  in  some 
quarters  has  become  a  legal  fetish.  But,  carefully 
examined,  it  is  easily  seen  to  be  a  false  god,  in  no 
respects  worthy  of  the  worship  and  ser\'ice  of  rational 
creatures.  The  doctrine  involves  nothing  less  than  the 
annihilation  of  the  State.  For  if  the  government  by 
any  act  could  immutably  bind  the  State,  then  the  State 
would  lose  its  sovereignty  and  would  cease  to  be  a 
State.  It  would  simply  become  a  vassal  to  the  govern- 
ment. What  President  Lincoln  so  forcibly  said  in  his 
first  inaugural  address  about  the  decisions  of  the  Su- 
preme Court  is  true  of  the  acts  of  every  department  of 
the  government.  "If,"  said  he,  "the  policy  of  the 
government  affecting  the  whole  people  is  going  to  be 
irrevocably  fixed  by  the  decisions  of  the  Supreme 
Court  the  moment  they  are  made,  as  in  ordinary  cases 
between  parties   in  personal  actions,   the  people  will 


The  State  in  its  Relation  to  Government.     29 

have  ceased  to  be  their  own  masters,  having  to  that 
extent  resigned  their  government  into  the  hands  of 
that  eminent  tribunal."  The  simple  truth  is  that  the 
true  government  has  nothing  to  do  with  the  inviol- 
abilit)'  of  rights,  vested  or  non-vested.  For  the  govern- 
ment of  an)'  given  time  is  the  expressed  will  of  the 
State  of  that  time.  It  has  never  the  right  unalterably 
to  act  for  unborn  generations,  or  in  any  way  immuta- 
bly to  bind  them  to  a  certain  course  when  they  come 
into  being.  A  father,  when  his  son  is  six  years  of  age, 
may  unalterably  prescribe,  if  you  please,  what  sort  of 
shoes  the  boy  shall  wear,  or  whether  he  shall  wear  any  ; 
but  that  does  not  give  him  the  right  to  determine  how 
he  shall  dress  at  forty-eight.  The  kind  of  food  that  my 
body  requires  to-day  may  be  far  from  the  most  bene- 
ficial for  me  twenty  years  from  to-day.  I  have  no 
right,  therefore,  absolutely  to  determine  to-day  what  I 
will  eat  nineteen  j^ears  from  to-day,  or  even  one. 

If  the  government  of  any  given  period  in  the  history 
of  a  State  cannot  unalterably  bind  future  governments, 
it  follows  as  a  matter  of  course  that  no  organization 
that  the  government  allows  to  be  formed  within  the 
territory  of  the  State  can  exercise  such  a  power.  No 
"  General  Assembly  "  or  "Conference,"  for  example, 
can  ever  have  the  right  unalterably  to  determine  the 
creed  of  the  churches  they  represent,  or  their  conditions 
of  membership.  Subsequent  assemblies  can  always 
review  their  proceedings  and  annul,  or  modify  their 
enactments,  whenever  the  good  of  the  cause  requires  it. 
The  trustees  of  a  college,  or  of  any  other  educational 
institution,  transcend  their  right,  if  they  accept  bequests 
of  any  description  on  the  condition  that  they  shall  for- 
ever be  devoted  to  the  propagation  of  any  set  of  doc- 
trines, however  true  the  doctrines  may  seem  to  be  in 


50  The  Sphere  of  the  State. 


themselves,  or  however  well  adapted  at  the  time  to  the 
needs  of  the  comniiinity.  For  the  government  can 
never  grant  to  the  donors  the  right  to  make  such  gifts 
or  empower  those  who  receive  them  to  act  except  for 
their  day  and  generation.  The  people  of  the  future 
are  alone  competent  to  control  the  future  and  if  at  any 
time  the  methods  and  institutions  and  notions  of  the 
present  no  longer  subserve  the  good  of  the  people,  the 
State  through  its  government  should  assert  its  original 
right  and  appropriate  the  funds  by  which  they  are  now 
supported  to  some  other  enterprise  that  does  subserve 
that  good. 

The  right  of  the  State  to  repudiate  the  doings  of  its 
government  in  its  legislative,  judicial,  or  executive 
capacity  is  a  divine  right.  No  government  of  to-day 
can  take  it  away  from  the  government  of  to-morrow. 
Its  exercise  becomes  a  sacred  duty,  whenever  a  decree 
of  the  legislature,  a  decision  of  the  court,  or  an  act  of 
its  executive  violates  a  principle  of  morality,  or  in  any 
way  becomes  subversive  of  the  true  interests  of  the 
people.  Thomas  Jefferson  never  gave  expression  to  a 
more  important  truth  than  when  he  wrote  from  Monti- 
cello  to  his  friend,  Thomas  Earl,  of  Worcester  :  "  That 
our  Creator  made  the  earth  for  the  living  and  not  for 
the  dead,  that  those  who  exist  not  can  have  no  use, 
nor  right  in  it,  no  authority,  or  povi^er  over  it  .  .  . 
these  are  axioms  so  self-evident  that  no  explanation  can 
make  them  plainer."  .  .  .  The  fact  that  it  is  "  found 
more  convenient  to  suffer  the  laws  to  stand  on  our  im- 
plied consent  as  if  positively  enacted  does  not  lessen  the 
right  of  a  man  to  repeal  them  whenever  a  change  of 
circumstances  or  of  will  calls  for  it.  Habit  alone  con- 
founds civil  practice  with  natural  right." 

As  a  matter  of  practical  politics  it  will  at  once  be  seen 


The  State  in  its  Relation  to  Government.     3  i 

that  in  the  application  of  this  doctrine  of  government 
nothing  is  of  greater  importance  than  the  qualifications 
of  the  governors  None  but  men  of  unusual  intellectual 
abilities  should  be  entrusted  by  the  people  with  the 
guidance  of  their  affairs  in  any  department  of  the  gov- 
ernment, but  especially  should  the  State  see  to  it  that 
only  the  wisest  of  its  members  form  its  constitution  and 
statutes  and  pass  authoritative  judgments  upon  their 
meaning  and  application.  No  other  persons  are 
capable  of  determining  what  ends  the  public  good  re- 
quires or  what  means  are  necessary  for  the  accomplish- 
,  ment  of  those  ends. 
^  But  above  all,  those  who  are  selected  to  rule  should 
be  men  of  the  highest  moral  character.  If  a  person 
does  not  revere  law  and  love  public  liberty,  whatever 
his  intellectual  qualifications  may  be,  he  is  unfit  to  rule 
his  fellows.  If  he  is  a  lover  of  self  and  bent  on  his  own 
aggrandizement,  he  should  never  be  placed  in  charge 
of  the  interests  of  the  State.  Only  as  he  is  ready  at  all 
times  to  sacrifice  himself  and  his  possessions  for  the 
good  of  the  State  can  he  be  relied  upon  in  a  crisis  to  be 
true  to  the  State.  The  welfare  of  the  three  greatest 
nations  of  modern  times  at  great  epochs  in  their  history 
was  not  entrusted  to  I^incoln,  Gladstone,  and  Bismarck 
for  any  other  reason  than  that  the  people  were  confident 
that  they  had  irrevocably  surrendered  themselves  to  a 
great  moral  purpose  and  would  unreservedly  devote  all 
their  powers  to  its  speedy  and  complete  accomplish- 
ment. 

It  is  the  very  function  of  a  statesman  to  give  expres- 
sion to  the  highest  moral  will  of  the  State.  The  ques- 
tions he  has  to  consider  are  first  of  all  moral  questions, 
— taxation,  education,  the  treatment  of  criminals,  the 
tariff,  the  rights  of  property,  the  relations  of  capital 


The  Sphere  of  tJie  State. 


and  labor  ;  all  these  and  similar  matters  can  never  be 
rightly  settled  except  on  ethical  grounds.  The  separa- 
tion of  politics  from  ethics  is  fatal  to  the  well-being  of 
any  people,  and  nothing  shows  more  clearly  the  degrada- 
tion of  a  nation  or  more  surely  hastens  its  downfall 
than  the  selection  of  rulers  who  lightly  regard  the 
teachings  of  morality,  either  in  their  private  conduct 
or  in  their  public  acts. 

The  chief  reason  for  the  superior  excellence  of  the 
governmental  system  of  the  United  States  is  that  its 
formation  was  in  the  hands  of  jurists,  not  of  landlords, 
or  warriors,  or  priests.  And  the  secret  of  its  wonder- 
ful success  is  the  great  confidence  the  people  have  in 
the  intellectual  and  moral  integrity  of  its  courts  of  jus- 
tice. It  is  pre-eminently  a  government  of  lawyers. 
And  if  it  is  going  to  maintain  itself  as  such  in  the 
future,  as  it  ought,  the  young  men  in  our  schools  must 
be  taught  that  the  only  jurisprudence  that  is  worth 
anything  is  based  on  ethics,  and  that  all  political  sci- 
ence that  is  divorced  from  morality  has  no  valid 
ground.  Otherwise  they  will  surely  and  speedily  lose 
their  dominating  influence  in  matters  of  government 
over  the  minds  of  the  people,  and  utterly  destroy  the 
sole  basis  of  their  power.  The  people  of  America 
rightly  look  to  the  legal  profession  for  their  officers 
of  State.  If  its  members  fulfil  in  any  measure  these 
expectations,  they  will  not  regard  their  profession  as 
simply  a  means' of  livelihood,  but  also  and  chiefly  as 
the  most  efficient  way  of  furthering  the  interests  of  the 
people  in  their  organic  capacity  as  a  State. 

The  view  of  the  State  and  its  relation  to  the  govern- 
ment that  I  have  here  presented  makes  clear  and  vivid 
the  difference  between  a  law  and  a  statute — a  very  im- 
portant difference,  but  one  too  often  overlooked.  A 
law  is  a  requirement  of  the  State,  while  a  statute  is  a 


The  State  in  its  Relation  to  Government.    33 

decree  of  the  government.  The  former  can  never  be 
wrong.  The  latter  is  not  often  unmixed  with  error, 
and  is  ever  capable  of  alteration  and  improvement. 
Plato  had  the  true  nature  of  law  in  mind  when  he  said 
"all  laws  come  from  God.  No  mortal  man  was  the 
foimder  of  laws."  Cicero  is  continuall}-  insisting  that 
"law  is  nothing  else  but  right  reason,  derived  from  the 
divinity. ' '  And  Edmund  Burke  in  his  speech  against 
Warren  Hastings  declares  :  ' '  All  dominion  over  man 
is  the  effect  of  the  divine  disposition.  It  is  bounded 
by  the  eternal  laws  of  him  who  gave  it."  Constitu- 
tions and  statutes  are  human  products.  They  repre- 
sent the  attempts  of  the  government  to  find  out  what 
course  of  conduct,  under  the  given  circumstances,  will 
be  most  in  harmony  with  these  unchangeable  laws. 
But  so  long  as  legislators  are  finite  and  look  at  things 
from  so  mau}^  different  standpoints,  they  will  be  falli- 
ble and  will  often  greatly  vary  in  their  judgments  as  to 
what  statutes  will  most  promote  the  well-being  of  the 
people.  For  this  reason  positively  bad  statutes  may  be 
enacted,  and  statutes  that  are  good  to-day  may  be  bad 
to-morrow.  A  man  ought  never  to  disobey  a  law,  but 
he  may  often  be  called  upon  to  disobey  a  statute.  It 
is  even  possible  for  a  person  who  has  given  himself  and 
all  he  possesses  for  his  country  to  be  the  greatest  of 
criminals  when  judged  by  the  statutes,  and  at  the  same 
time  the  chief  of  patriots  when  judged  by  the  laws.  A 
statute,  but  not  a  law,  may  become  a  "dead  letter." 
If  the  circumstances  to  which  the  statute  was  originally 
intended  to  apply  have  entirely  changed,  or  if  the 
statute  requires  the  violation  of  a  principle  of  moral- 
ity or  of  a  divine  command,  those  who  execute  the 
statutes  may  justl}^  pass  it  by,  and  the  subjects  of  the 
government  may  justl}^  proceed  as  though  it  had  no 
being.     A  judge  is  not  appointed  to  interpret  and  ad- 


34  The  Sphere  of  the  State. 

minister  the  laws,  but  to  interpret  and  administer  the 
statutes.  He  should  always  assume  that  the  makers 
of  the  statutes  intended  so  to  frame  them  as  to  promote 
the  good  of  the  people.  If,  therefore,  a  given  statute 
is  capable  of  two  or  more  interpretations,  he  should 
always  take  the  one  that  in  itself  and  in  the  applica- 
tion will  most  further  the  public  well-being,  in  each 
individual  case  giving  a  strict  or  liberal  interpretation 
as  the  best  interests  of  the  people  require. 

The  true  State  is  the  grandest  of  all  earthly  institu- 
tions. It  embraces  in  its  organism  every  living  human 
being.  It  recognizes  every  man  as  a  brother,  and  is 
the  true  friend  of  all, — the  enemy  only  of  the  vicious. 
No  individual  is  so  low  as  not  to  be  the  object  of  its 
deepest  concern,  and  no  one  so  high  as  not  to  come 
within  its  jurisdiction.  None  are  so  poor  that  they  do 
not  share  in  its  benefits,  and  none  are  so  rich  that  they 
do  not  require  its  constant  protection  and  unceasing 
support.  The  true  government  is  a  representative  and 
servant  of  the  State.  It  does  nothing  of  itself.  All 
the  power  and  authority  it  possesses  it  gets  from  the 
State.  Its  true  mission  is  to  express  the  will  of  the 
State  and  do  all  it  can  to  help  its  members  understand 
and  obey  that  will. 

It  is  false  to  hold  that  government-help  and  self-help 
are  antagonistic  forces.  The  truth  is  that  no  man  can 
dispense  with  either.  The  whole  matter  is  merely  a 
question  of  proportion.  And  that  is  the  best  govern- 
ment in  which  the  two  forces  are  most  harmoniously 
blended,  and  those  are  the  best  statutes  which  allow  to 
every  man  a  full  and  free  opportunity  to  do  his  best — 
to  develop  himself  to  the  highest  possible  perfection, 
and  at  the  same  time  see  to  it  that  all  individual  ad- 
vancement redounds  to  the  well-being  and  glory  of  all. 


CHAPTER  III. 

THE  RESPONSIBILITY  OF  THE  STATE  FOR  EDUCATION. 

No  man  can  help  being  a  member  of  the  State  any- 
more than  he  can  help  being  born  with  a  head  and  a 
stomach.  He  is  so  related  to  every  member  of  the 
State  that  whatever  affects  them,  for  good  or  for  ill, 
affects  him ;  and  whatever  affects  him  affects  them. 
Hence  his  first  and  chief  need  is  enlightenment  as  to 
what  these  ever  varying  relations  require  ;  and  the 
State's  first  and  chief  duty,  acting  through  its  govern- 
ment, which  is  its  mouth-piece,  is  to  see  that  this  need 
is  supplied.  Every  finite  creature,  whatever  may  be 
his  moral  status,  will  need  enlightenment  so  long  as  he 
remains  finite.  The  kind  of  character  he  possesses 
makes  no  essential  difference  as  to  this  need.  That  is 
the  best  government,  therefore,  that  does  the  most  that 
can  be  done,  under  existing  conditions  and  limitations, 
to  promote  the  intelligence  and  culture  of  all  its 
subjects. 

The  protection  of  society  from  evil-doers  is  only  an 
incidental  function  of  government.  It  disappears 
wherever  or  whenever  all  men,  to  the  best  of  their 
ability,  are  willing  to  follow  reason.  But  not  so  with 
the  educational  function  of  government.  Instead  of 
diminishing  in  importance  as  nations  advance  in 
knowledge  and  virtue,  it  constantly  increases.    As  the 

35 


o 


6  T/ie  Sphere  of  tJic  State. 


relations  of  men  become  more  complex,  the  greater 
becomes  the  need  for  enlightenment  as  to  what  those 
relations  require.  No  power  is  so  competent  to  obtain 
and  impart  this  enlightenment  as  the  true  State,  and 
no  delusion  is  so  great  as  that  of  supposing  that  men, 
if  left  to  themselves,  will  obtain  it.  The  sad  fact  is 
that  man  is  vastly  more  inclined  to  throv/  away  his 
opportunities  than  he  is  to  improve  them.  Educate 
him  never  so  highly,  and  then  free  him  from  all 
external  restraint  and  constraint,  and  he  will  degenerate 
and  become  more  and  more  like  the  brute.  We  ought 
not  to  be  surprised,  therefore,  at  the  historic  fact  that, 
where  the  people  are  the  most  highly  civilized,  there 
we  find  that  the  government  has  done,  and  is  continu- 
ing to  do,  the  most  for  their  education  and  advancement. 
But  the  true  State  has  not  merely  the  right  to  assist 
in  the  education  of  its  members.  We  go  much  farther 
than  this,  and  firmly  maintain  that  the  ultimate  control 
of  and  responsibility  for  the  education  of  the  people  rests 
with  the  State.  The  organism  cannot  otherwise  be 
brought  to  its  highest  degree  of  efficiency  and  power. 
The  whole  body  would  soon  go  to  pieces,  if  the  brain 
did  not  attend  to  the  development  as  well  as  the  move- 
ment of  all  the  organs  of  the  body.  In  fact  there  is  no 
other  power  to  which  the  State  can  delegate  the 
matter.  For  the  State  knows  no  earthly  power  higher 
than  itself.  It  is  the  ultimate  force  in  all  mundane 
affairs.  It  controls  all  interests,  all  institutions,  and 
all  persons.  Every  organization  of  every  description 
within  its  territory  is  subject  to  its  jurisdiction.  Its 
rights  are  the  only  absolute  rights  known  to  us  in  our 
relations  to  our  fellows  ;  and  the  ultimate  responsibility 
for  the  discharge  of  its  duties  can  never  be  placed 
upon  any  other  power.     Rightly  understood,  therefore, 


kesponsibility  of  the  State  for  Educatwii.      37 

there  can  be  no  limit  to  State  control  of  education,  and 
along  with  this  control  must  also  always  go  a  corre- 
sponding obligation.  It  can  never  justly  give  up  the 
exercise  of  the  one  or  avoid  the  responsibiHty  of  the 
other. 

How  far  it  may  give  way  to  the  locality  or  to  the 
parent  in  the  matter  is  a  question  of  expediency 
merely,  and  its  course  of  procedure  may  greatly  vary 
from  time  to  time  with  the  change  in  conditions.  It  is 
never  a  question  of  absolute  right.  The  locality  gets 
its  power  to  establish  and  maintain  its  schools,  just 
as  it  gets  its  power  to  build  its  bridges  and  pave  its 
streets,  not  from  itself,  but  from  the  vState  ;  and  the 
State  is  ultimately  responsible  for  the  way  the  locaHty 
uses  that  power.  It  by  no  means  follows  that,  if  the 
privilege  has  once  been  conferred,  it  cannot  be  taken 
away.  It  always  ought  to  be  taken  away  if  the 
locality  uses  its  power  exclusively  to  further  the 
interests  of  a  clique,  or  sect,  or  party,  and  not  for  the 
greatest  good  of  all.  The  same  thing  holds  true 
of  every  private  school  or  college.  No  institution  of 
learning  of  any  sort  in  any  part  of  the  State  has  any 
(right  to  erect  buildings,  hire  teachers,  or  confer  degrees 
except  by  the  authority  of  the  people  of  the  common- 
wealth acting  in  their  sovereign  capacity  as  a  State. 
The  moment  they  are  managed  solely  for  the  glorifica- 
tion of  any  individual  or  church,  and  not  pre-eminently 
for  the  public  good,  that  moment  the  ground  for  their 
continuance  ceases  to  exist.  They  have  by  their  own 
act  become  their  own  executioners.  The  State  should 
annul  their  charters,  and  devote  their  property  to  some 
other  purpose  that  in  reality  conserves  the  well-being 
of  all. 

The  right  of  the  parent  to  assist  in  the  education  of 


o 


8  TJic  Sphere  of  the  Staie. 


his  child  is  also  a  derived  right.  It  is  a  privilege 
granted  by  the  State  under  certain  conditions  and  limi- 
tations. No  parent  has  the  absolute  right  to  educate 
his  child  as  he  pleases,  any  more  than  he  has  an 
absolute  right  to  feed  him  and  clothe  him  as  he  pleases. 
The  ultimate  and  final  control  over  every  member  of 
the  State  belongs  to  the  State  alone.  The  State  can 
justly  allow  the  parent  to  feed  and  clothe  and  educate 
his  child  only  on  the  ground  that  the  child  will  at 
least  be  as  well  cared  for  by  that  method  as  it  would 
by  the  method  of  direct  control. 

The  ultimate  responsibility  for  the  child  is  with  the 
State,  and  it  should  spare  no  means  to  make  the  child 
as  useful  a  member  of  the  State  as  the  capabilities  of 
the  child  and  the  given  circumstances  permit.  If  the 
parent  is  incompetent  or  unwilling  to  do  the  work 
delegated  to  him,  he  should  be  treated  according  to 
his  deserts.  But  neither  the  State  nor  the  child  should 
be  allowed  unnecessarily  to  suffer.  If  your  eye  offends 
you  and  will  not  do  the  work  of  an  eye,  pluck  it  out 
and  cast  it  from  you ;  but  at  the  same  time  see  to  it 
that  the  other  eye  is  not  permitted  unnecessarily  to 
degenerate,  but  on  the  contrary  is  made  the  most  of 
for  the  good  of  the  whole  body. 

The  State  should  always  resist  everything  that  tends 
to  its  own  disintegration.  Above  aH  things  it  should 
never  injure  itself.  It  does  this  whenever  it  allows 
any  of  its  members  singly  or  collectively  to  do  a  thing 
that  is  not  for  the  good  of  the  whole  people.  And 
just  as  the  whole  body  is  of  more  account  than  any  one 
organ  of  the  body,  and  has  the  ultimate  control  of  and 
responsibility  for  the  development  and  conduct  of  all 
the  separate  parts  of  the  body,  so  the  people  in  their 
organized  capacity  as  a  State,  are   of  more   account 


Rcspoiisibility  of  the  State  for  Education.     39 

than  any  one  individual  or  collection  of  individuals ; 
and  can  never  free  themselves,  however  much  they 
may  wish  to  do  so,  from  the  obligation  to  nurture  and 
develop  to  the  highest  attainable  degree  of  usefulness 
and  power  the  humblest  and  weakest  of  their  number, 
as  well  as  the  strongest  and  most  capable  ;  regardless, 
if  need  be,  of  local  or  parental  co-operation  and 
approval. 

This  leads  us  at  once  to  the  position  that  it  is  the 
duty  of  the  State,  acting  through  its  government,  to 
establish  and  maintain  a  general  system  of  education. 
It  is  impossible  for  it  properly  to  instruct  its  members 
as  to  what  the  best  interests  of  all  require  without  such 
a  system.  This  is  not  afl&rming  that  the  government 
must  directly  manage  every  educational  institution 
within  its  borders.  It  may  delegate  this  duty  to  cer- 
tain individuals  or  corporations  that  show  themselves 
duly  quahfied  for  the  task.  It  is  solely  on  the  ground 
that  they  are  thus  qualified  that  the  State  can  justly 
allow  them  to  hold  property,  receive  bequests  from 
liberally  disposed  citizens,  or  gather  fees  from  their 
patrons  for  their  support. 

This  general  system  of  education  should  be  adequate  ^ 
to  the  needs  of  the  State,  It  should  be  in  quality  and 
character  such  as  will  abundantly  fit  the  rich  and  the 
poor,  the  high  and  the  low,  of  whatever  race,  or  color, 
or  religion,  to  become  the  most  efficient  promoters  of 
the  general  welfare  of  which  they  are  capable. 

In  order  to  do  this,  the  State,  and  not  the  locality  or 
the  individual,  should  fix  upon  a  definite  course  of 
instruction  to  which  all  the  schools  within  the  State, 
whether  public  or  private,  should  be  compelled  in  sub- 
stance to  conform,  with  the  fullest  liberty  to  go  as  far 
beyond  the  standard  as  they  may  desire,  but  not  to 


4o  TJie  Sphere  of  tJie  State. 

fall  below  it.  It  is  neither  wise  nor  safe  to  leave  the 
fixing  of  this  standard  to  any  power  short  of  the  whole 
body-politic.  For  otherwise  the  intelligence  of  the 
whole  State  would  not  be  brought  to  bear  upon  the 
matter ;  there  would  be  no  uniformity  in  results  ;  and 
the  work  of  the  localities  would  not  be  arranged  as  it 
ought  to  be  with  reference  to  other  and  higher  courses 
still  to  follow.  It  is  a  reckless  waste  of  time  and 
energy  for  us  in  America  longer  to  disregard  the 
teachings  of  history  on  this  matter.  It  is  a  shame  that 
we  in  the  new  world  are  not  more  willing  to  learn  from 
the  experience  of  the  old.  We  are  without  excuse  for 
continuing  to  ignore  the  fact  that  the  people  are  the 
most  .intelligent  and  civilized,  not  merely  where  the 
most  money  is  spent  for  education,  but  where  the 
governmental  supervision  of  the  schools  is  the  most 
complete.  This  always  has  been  so,  is  so  to-day,  and 
we  have  no  reason  to  suppose  that  it  will  not  always 
continue  to  be  so  in  the  future.  We  have  no  instance 
in  history  of  a  people  maintaining  unaided  a  high 
>  degree  of  intelligence,  even  after  they  have  once 
attained  it. 

lyct  us  not  delude  ourselves  with  the  idea  that  there 
is  in  the  world,  or  ever  has  been,  any  such  thing  as 
self-education.  A  man's  powers  are  led  out  by  some- 
thing from  without.  The  mind  cannot  grow  and 
develop  any  more  than  the  body  without  something 
upon  which  to  feed.  The  temple  of  knowledge  is 
closed  to  him  who  will  not  eagerly  reach  out  his  hand 
for  some  one  to  help  him  enter.  The  strongest  and 
best  friend  of  anj^  member  of  the  brotherhood  of  man 
is  the  brotherhood  itself.  The  true  State  is  by  far  the 
most  efficient  and  powerful  helper  of  every  member 
of  the  State,  and  is  far  more  interested  than  any  indi- 


Responsibility  of  the  State  for  Education.     41 

vidual  can  be  in  seeing  to  it  that  every  person  in  the 
organism  has  a  fair  opportunity  to  fit  himself  for  the 
highest  degree  of  usefuhiess  in  it,  of  which  he  is 
capable.  The  sooner  we  recognize  these  facts  and  act 
upon  them,  the  sooner  shall  we  be  able  to  rid  ourselves 
of  the  illiterate  millions  that  now  help  to  rule  our 
country  and  fashion  our  laws. 

But  the  State,  if  it  does  its  duty,  will  not  stop  with 
the  fixing  of  a  common  standard.  It  will  also  secure 
the  proper  means  for  carrying  it  into  effect.  It  will 
determine  and  determine  accurately  the  necessary  qual- 
ifications of  the  teacher.  The  locality  will  be  allowed 
to  select  its  own  teachers ;  but  the  preparation  neces- 
sary for  the  high  ofiice  is  too  important  a  matter  to  be 
left  to  any  power  less  than  the  State  itself.  The  local- 
ity does  not  educate  for  itself  alone,  but  to  make  of  its 
inhabitants  good  citizens  of  the  whole  commonwealth. 
If  the  locality  for  any  good  reason  is  unable  to  furnish 
adequate  buildings,  books,  and  other  appliances  for  its 
schools,  or  to  secure  competent  instructors,  the  State 
from  its  own  treasury  should  make  up  the  deficit.  The 
education  of  the  people  should  not  be  left  to  go  "  on  a 
blind  and  aimless  way."  It  should  be  supervised  by 
one  competent  authority  for  one  common  result.  Any 
education  that  does  not  tend  to  the  realization  of  this 
result  should  not  be  tolerated. 

We  do  not  ignore  the  fact  that  great  natural  differ- 
ences exist  among  scholars.  But  these,  from  the  very 
nature  of  the  case,  must  be  left  to  the  teacher,  whose 
work,  while  it  is  the  noblest  of  all- callings,  is  at  the 
same  time  the  most  difficult  of  all  arts.  Few  indeed  are 
competent  to  succeed  in  it.  But  the  likenesses  among 
scholars  are  far  greater  than  the  differences  ;  and  the 
ends  to  be  accomplished  are  sufficiently  similar  to  justify 


42  The  Sphere  of  the  State. 

our  position  that  the  State  should  see  that  a  common 
standard  of  efficiency  is  maintained  through  every  por- 
tion of  the  organism,  and  that  the  whole  body-politic 
is  not  allowed  to  suffer  through  the  indifference  or  the 
misdirected  energy  of  any  part. 

One  of  the  most  efficient  agents  of  modern  times  for 
bringing  about  this  desired  result  is  the  University  of 
France.  The  fact  that  its  model,  the  University  of  the 
State  of  New  York,  has  done  but  little  more  in  the  past 
than  gather  educational  statistics  and  grant  official 
charters  is  no  reflection  upon  the  institution  itself.  It 
should  become  the  inspirer  and  guide  of  the  whole  ed- 
ucational system  of  the  State  from  one  end  to  the  other. 
It  should  reach  out  its  helping  and  guiding  hand  to 
every  locality  in  it  and  bring  the  vigor  and  enterprise 
of  the  whole  people  to  work  harmoniously  together  for 
the  one  common  end. 

But  it  is  not  enough  for  the  State  to  maintain  primary 
schools  only  for  the  benefit  of  its  members.  It  ought 
to  provide  institutions  for  the  higher  education  of  the 
people  as  well  as  the  lower.  For  the  welfare  of  the 
State  depends  as  truly  on  the  one  as  the  other.  In  fact, 
the  historic  order  and  the  necessary  order  is  first  the 
college  and  then  the  school,  not  the  reverse.  Great  uni- 
versities were  established  in  Europe  and  America  long 
before  the  common  school  came  into  being.  The  com- 
mon school  could  not  otherwise  have  obtained  compe- 
tent instructors.  The  truth  is  that  the  desire  for  an, 
education  will  not  be  aroused  in  the  people  until  they 
see  some  examples  of  its  beneficial  effects.  The  pres- 
ence of  a  few  well  educated  men  and  women  in  a  com- 
munity will  do  more  for  the  schools  in  that  community 
than  any  amount  of  expenditure  or  any  amount  of 
exhortation.     It  is  always  true  that  the  character  of 


Responsibility  of  the  State  for  Education.     43 

the  lower  schools  is  mainly  determined  by  the  character 
of  the  higher,  and  that  if  the  higher  go  down,  the 
lower  go  down  with  them.  One  reason  why  it  is  so 
difficult  to  have  good  schools  in  some  parts  of  our 
country  is  that  the  people  do  not  see  the  need  of  them. 
It  seems  hardly  too  much  to  say  that  if  our  schools  are 
ever  to  become  equal  to  those  of  Europe,  the  State  must 
insist  upon  it  that  no  new  teachers  shall  be  allowed  to 
enter  the  profession  unless  they  be  graduates  of  some 
normal  school  or  college. 

It  is  by  no  means  necessary  that  every  State  should 
establish  and  maintain  what  is  commonly  called  a  State 
university.  If  the  institutions  already  commissioned 
by-  the  State  are  supplying  the  demands  of  the  State  as 
well  as  it  could  be  done  by  the  direct  control  of  the 
State,  they  may  still  be  allowed  the  privilege  of  contin- 
uing to  supply  that  demand. 

But  the  work  of  every  college  and  university  within 
the  territory  of  the  State  should  always  be  open  to  the 
inspection  of  the  State,  and  should  never  be  allowed  to 
fall  below  the  standard  of  the  State  ;  and  if  the  exist- 
ing institutions  are  managed  for  the  rich  alone  and  not 
as  truly  for  the  poor,  and  are  not  open  to  all  on 
common  grounds,  with  free  tuition  for  those  who  are 
actually  unable  to  pay  it,  the  State  should  either 
compel  them  to  grant  these  privileges,  or  should  found 
other  institutions  sufficiently  numerous  and  accessible 
to  supply  this  need.  The  State  is  recreant  to  its 
sacred  trusts,  unless  it  sees  that  all  its  members,  of 
whatever  station,  race,  or  religion,  have  the  fullest  op- 
portunity that  the  existing  conditions  allow  of  develop- 
ing to  the  highest  degree  of  efficiency  all  their  powers. 

Common  schools  and  common  universities  are  the 
truest  levellers  of  mankind.     They  do  more  to  bring 


44  The  Sphere  of  the  State. 

young  men  and  women  to  a  proper  estimate  of  their 
actual  worth  than  all  other  forces  combined.  If  we 
ever  expect  to  Americanize  the  people  of  our  country, 
we  must  do  it  through  our  schools,  and  we  utterly 
ignore  the  teachings  of  history,  if  we  attempt  to  do  it 
in  any  other  manner.  We  make  light  of  our  obligations 
to  future  generations,  if  we  do  not  minimize  the 
sectarian  and  class  idea  in  every  grade  of  education, 
and  magnify  far  beyond  our  present  conceptions  the 
rights  and  obligations  of  the  whole  body-politic. 

Nor  is  it  enough  for  the  State  to  educate  its  members 
in  secular  matters  merely.  It  does  not  do  its  duty 
unless  it  furnishes  as  thorough  instruction  at  least  in 
sound  morals  as  in  any  other  department  of  knowledge. 
The  State  is  bound  to  do  everything  it  can  to  make  its 
people  virtuous.  It  fails  to  do  this  unless  it  recognizes 
that  every  man  has  a  conscience,  which  is  the  common 
bond  that  unites  him  to  all  his  fellows,  and  furnishes 
all  rational  creatures  with  one  common  standard  of 
conduct  in  all  their  mutual  relations.  Conscience  is 
the  power  every  man  possesses  of  beholding  the  ulti- 
mate rule  of  all  moral  conduct.  If  a  being  does  not 
possess  a  conscience,  it  has  not  evolutionized  far 
enough  to  be  a  man.  Conscience,  properly  defined, 
never  tells  a  man  what  to  do  in  particular  cases.  That 
is  left  for  his  judgment  to  decide.  Conscience  always 
says,  "Follow  reason."  But  our  judgment  must 
determine,  as  best  it  may,  what  is  reasonable.  We  are 
put  into  this  world  to  develop  our  judgment,  not  to 
develop  conscience.  Conscience  infallibly  gives  us 
the  principle  of  action,  but  judgment  is  our  only  guide 
in  determining  whether  or  not  our  conduct  conforms  to 
it.  All  rational  creatures  agree,  when  they  under- 
stand it,    that  they   ought  to  follow   conscience,    but 


Responsibility  of  tJic  State  for  Education.     45 

they  diflFer  greatly  in  their  judgtaents  as  to  what  par- 
ticular course  of  conduct  under  the  given  circumstances 
conscience  requires.  The  State  can  do  nothing  to 
educate  the  conscience,  but  it  can  do  almost  every- 
thing to  educate  and  develop  the  judgment. 

How  can  the  State  properly  enlighten  its  members 
as  to  how  they  can  fill  their  true  place  in  the  organism, 
unless  it  does  what  it  can  to  instruct  them  in  the  best 
ways  of  following  conscience — that  is,  acting  reason- 
ably— in  all  their  relations  to  their  fellows  ? 

The  mandates  of  the  true  State  are  always  in  har- 
mony with  conscience  and  the  statutes  of  the  govern- 
ment of  the  State  are  j  ust  and  wise  only  in  proportion 
as  they  approach  to  the  demands  of  conscience.  The 
whole  object  of  the  State,  rightly  apprehended,  is  to 
help  its  members  to  the  best  of  its  ability  in  all  their 
varied  relations  with  one  another,  to  act  reasonably,  to 
do  as  conscience  requires.  The  utmost  care,  therefore, 
will  be  taken  by  the  State  to  provide  for  its  people  the 
best  moral  instruction  possible.  It  will  clearly  recog- 
nize the  fact  that  all  its  other  efforts  at  education  will 
be  of  little  avail  unless  the  people  are  taught  ade- 
quately to  appreciate  the  superlative  importance  of 
their  mutual  relations  to  their  fellows.  And  while  it 
will  regard  the  so-called  conscientious  convictions  of 
its  members  as  simpl}^  their  opinions  or  judgments  as 
to  whether  this  or  that  action  is  in  harmony  with  the 
rule  given  by  conscience,  and  as  liable  to  be  wrong  as 
their  judgments  in  other  matters,  it  will  do  everything 
in  its  power  to  bring  those  convictions  to  accord  with 
its  own  declarations  as  to  what  the  public  good  re- 
quires, and  thus  gain  for  itself  the  invaluable  assist- 
ance to  the  accomplishment  of  its  purpose  that  such  an 
accordance  would  undoubtedly  secure. 


46  The  Sphere  of  the  State. 

By  far  the  most  important  phase  of  the  subject  be- 
fore us  still  remains  for  our  consideration.  And  though 
it  abounds  just  at  present  in  many  practical  difficulties, 
we  turn  to  it  with  full  assurance  that  the  difficulties 
are  not  insuperable,  and  that  the  true  course  of  pro- 
cedure in  this  matter  as  in  many  others  clearly  reveals 
itself  in  the  light  of  the  true  conception  of  the  State. 

We  refer  to  the  religious  aspect  of  the  subject  under 
discussion,  and  we  unhesitatingly  advocate  the  doctrine 
that  religious  instruction,  as  well  as  secular,  should  be 
given  in  the  schools  of  the  State.  But  solely  as  a 
means  to  an  end — not  as  an  end  in  itself.  Historically, 
the  first  family  was  at  one  and  the  same  time  the  first 
State  and  the  first  church.  These  institutions  are  all 
of  divine  origin.  For  all  men  are  so  made  by  their 
Creator  that,  whether  they  will  or  not,  they  are  no  more 
truly  related  to  their  parents  than  they  are  to  one  an- 
other and  to  God.  It  is  impossible  for  them  adequately 
to  understand  themselves  and  their  relations  to  one  an- 
other without  the  mutual  recognition,  in  some  degree 
at  least,  of  their  common  relation  to  God. 

The  State,  therefore,  that  is  true  to  its  mission — the 
highest  well-being  of  all  the  people — will  use  all  the 
means  in  its  power  to  have  its  members  receive  the 
most  competent  instruction  available  on  their  relation 
to  God  as  on  their  relation  to  one  another.  It  will 
select  and  teach  those  religious  principles  and  ideas 
that  most  nearly  coincide  with  its  own  ideas ;  not  at 
all,  as  has  already  been  said,  as  an  end — to  oblige  its 
subjects  to  accept  the  ideas  as  their  own,  or  to  worship 
according  to  them — but  solely  as  a  means  ;  to  help 
them  to  a  more  perfect  appreciation  of  their  relation  to 
their  fellows.  The  wisest  government,  holding  that 
the  true  conception  of  the  State  is  that  of  a  brother- 


Responsibility  of  the  State  for  Education.     47 

hood  among  men,  will  instruct  its  people  in  the  princi- 
ples of  that  religion  that  most  perfectly  actualizes  this 
idea.  No  government  is  justified  in  ignoring  the  re- 
ligious convictions  of  its  subjects.  For  they  are  the 
deepest  and  most  pervasive  convictions  of  the  human 
mind.  A  wise  government  will  do  all  in  its  power  to 
show  its  subjects  that  its  own  ends  correspond  with 
those  of  a  true  religion,  and  thus  obtain  the  most 
efl&cient  assistance  it  can  possibly  secure  towards  the 
accomplishment  of  those  ends. 

Unless  it  does  this,  it  fails  to  do  all  that  it  can  do  to 
develop  and  perpetuate  the  brotherhood  of  which  it  is 
the  representative,  and  to  help  every  member  of  the 
brotherhood  to  become  as  great  a  power  for  good  in  it 
as  in  him  is. 

We  regard  the  question  of  an  established  church, 
with  houses  of  worship  and  ministers  supported  di- 
rectly by  the  government  out  of  the  common  tax,  as  a 
question  foreign  to  our  theme.  We  are  here  advocating 
the  giving  of  religious  instruction  in  our  public  schools 
solely  as  a  means  to  an  end,  and  not  as  an  end  in  itself 
No  outside  power  can  ever  compel  a  man  to  adopt  a 
religion  as  an  end,  however  strenuously  it  may  make 
the  effort  to  do  so.  True  religion,  if  adopted  at  all, 
must  be  self-adopted.  All  true  worship,  like  all  true 
virtue,  must  be  the  act  of  a  free  being.  A  wise  govern- 
ment will  not  waste  its  energies  in  trying  to  accomplish 
the  impossible.  While  it  makes  due  provision  for  the 
instruction  of  its  people  in  those  religious  ideas  that  it 
can  best  use  as  a  means  in  order  to  gain,  as  far  as  may 
be,  the  approval  and  support  of  the  religious  convictions 
of  its  subjects,  it  will  leave  entirely  to  the  free  choice 
of  every  individual  the  adoption  of  any  religion  he 
pleases  and  the  practice  of  its  rites — provided,  of  course, 


48  The  Sphere  of  the  State. 

that  such  practice  docs  not  lead  him  to  modes  of 
conduct  that  are  injurious  to  the  ends  of  the  State.  The 
State  should  never  hesitate  to  suppress  at  once  each 
and  every  institution  that  is  subversive  of  that  end. 

The  argument  that  no  member  of  the  State  should 
be  obliged  in  any  way  to  help  support  religious  opin- 
ions which  he  himself  does  not  accept  as  the  true  ones, 
has  already  had  more  influence  in  this  country  than  it 
deserves.  Religious  scruples,  like  conscientious  scru- 
ples, are  always  to  be  respected.  But  they  are  as  liable 
to  be  false  guides  as  our  opinions  in  other  matters,  and 
the  State  must  never  allow  them  to  be  followed  when 
they  collide  with  the  well-being  of  the  people.  Many 
in  almost  everj^  State  have  religious  scruples  against 
going  to  war.  They  claim  that  all  wars  are  wicked, 
and  that  all  who  engage  in  them  transgress  the  laws 
of  God  and  do  violence  to  their  own  conscience,  and 
no  one  will  question  their  honesty  and  piety  in  so 
doing.  But  shall  the  government  for  this  reason  ex- 
empt them  from  taxation  in  support  of  a  war,  or  from 
rendering  military  service  when  the  defence  of  the 
country  demands  it  ?  A  growing  number  are  clamor- , 
ing  against  all  police  regulations  on  precisely  the  same 
grounds,  and  crying  out  against  all  restraints  upon  their 
conduct  except  moral  suasion.  Shall  they  be  exempt 
from  helping  to  maintain  the  laws,  and  not  be  punished 
if  they  disobey  them  ? 

All  governments  are  finite.  They  may  as  easily 
make  mistakes  on  this  subject  as  on  any  other.  When 
they  do  they  should  rectify  them  just  as  they  do  the 
others.  They  should  not  deny  their  authority,  or  shirk 
their  responsibility,  but  they  should  learn  wisdom  by 
experience,  and  make  all  the  greater  effort  to  avoid 
making  similar  mistakes  in   the  future.     "  The  real 


Responsibility  of  the  State  for  Education.     49 

difficulty  in  this  whole  question,"  says  a  careful 
thinker,  ' '  conies  from  confounding  two  things  radically 
different.  With  civil  government  religion  is  a  means, 
with  the  individual  conscience  it  is  an  end  ;  when, 
therefore,  these  two  come  in  conflict,  we  need  not  ask 
which  should  yield  to  the  other,  for  each  should 
triumph." 

It  must  be  allowed  by  every  careful  observer  that  the 
present  status  of  our  schools  on  this  matter,  if  not  one 
of  complete  chaos,  is  at  least  one  of  general  discontent. 
The  Roman  Catholics  complain  (and  often  justly)  that 
our  schools  are  godless.  The  Protestants  differ  widely 
among  themselves  on  the  subject,  few  agreeing  as  to 
what  they  desire.  The  Catholics  want  their  parochial 
schools  and  their  share  of  the  public  money,  while  the 
different  Protestant  denominations  are  clamoring  for 
their  own  academies  and  universities  to  which  to  send 
their  children,  if  they  possess  the  means  of  doing  so, 
rather  than  ' '  patronize ' '  the  schools  of  the  State.  It 
is  high  time  that  we  should  acknowledge  that  in  trying 
to  avoid  going  to  pieces  on  Scylla  we  are  just  on  the 
verge  of  falling  into  Charybdis  head  foremost.  Who 
will  attempt  to  deny  the  assertion  that  in  no  civilized 
country  on  the  globe  are  the  children  so  ignorant  of 
the  Bible  as  in  our  own  ?  The  knowledge  that  the 
average  young  American,  even  in  our  colleges,  has 
of  the  Scriptures  is  ridiculously  little.  He  would  be 
ashamed  not  to  know  more  about  Burns  or  Bellamy. 

The  truth  is  we  have  practically  left  religious  instruc- 
tion to  take  care  of  itself,  or  have  delegated  it  to  the 
Sundaj'-school,  where  any  one  is  often  regarded  as 
competent  to  take  a  class  who  can  entertain  it  for  half- 
an-hour  and  keep  fairly  good  order.  How  can  a  child 
of  fair  intelligence,  after  several  years  of  such  tuition, 


50  The  Sphere  of  the  State, 

come  to  any  other  conclusion  than  that  the  people 
actually  care  but  little  about  a  matter  that  they  allow 
to  be  treated  in  so  shiftless  a  manner,  when  for  the  bread- 
and-butter  studies  they  demand  the  best  hours  of  the 
day  and  the  most  accomplished  masters  ?  Why  continue 
our  experimenting  longer?  Why  not  adopt  and  be 
done  with  it,  of  course  with  reasonable  modification,  the 
method  that  has  been  so  successful  in  the  best  schools 
of  Europe  ?  The  difference  in  our  form  of  government 
is  no  sufficient  reason  why  we  should  reject  it.  L^t 
the  number  of  hours  to  be  spent  on  secular  studies,  in 
the  lower  grades  at  least,  be  limited  to  three  daily. 
Then  let  one  hour  be  given  to  manual  instruction,  and 
one  to  moral  and  religious.  If  the  regular  teacher  is 
not  satisfactory  to  the  community  for  this  work,  let  a 
nomination  be  made  to  the  school-board  of  one  who 
will  be.  If  the  different  sects  in  any  locality  will  ar- 
range to  do  this  work  in  a  manner  satisfactory  to  the 
State,  let  them  have  the  hour.  But  by  no  means  let 
the  ultimate  control  of  the  matter  be  left  to  the 
churches.  The  welfare  of  the  State  is  too  dependent 
upon  the  sound  religious  instruction  of  its  members  to 
have  its  fate  determined  by  the  ever-changing  fortunes 
of  the  war  of  the  sects.  Reason  is  against  it.  History 
is  against  it.  If  left  entirely  to  the  denominations,  the 
Protestants,  in  the  long  run,  will  pay  the  matter  too 
little  attention  and  the  Roman  Catholics  too  much. 
The  State  is  the  only  power  that  can  properly  conserve 
the  interests  of  all  the  people  in  this  matter.  This  it 
can  do  by  so  managing  its  schools  as  to  do  away  with 
the  need  of  parochial  or  private  schools  altogether. 
I>t  it  make  the  schools  of  all  grades  of  such  superior 
excellence  in  all  secular  education  that  complaint  in 
this  direction  shall  be  groundless.   Then,  while  leaving 


Responsibility  of  the  State  for  Education.     5 1 

the  acceptance  of  any  moral  rule  or  religious  principle 
as  an  end  to  the  free  choice  of  the  individual,  let  the 
best  moral  and  religious  instruction  obtainable  follow. 
I^t  the  State  call  upon  every  department  of  knowledge 
to  furnish  it  the  means  with  which  to  fulfil  its  mission. 
Let  it  not  shrink,  because  of  this  or  that  temporary 
obstacle,  from  its  responsibility  for  so  doing. 

The  true  State  is  nothing  less  than  the  organic 
brotherhood  of  man.  The  poorest  and  weakest  of  its 
members  is  as  truly  the  object  of  its  solicitude  and  care 
as  the  richest  and  most  puissant.  It  strives  to  give  to 
every  individual  the  fullest  opportunity  to  do  his  best 
for  the  good  of  all.  In  the  accomplishment  of  this 
great  end  its  first  and  last  and  chiefest  means  is  educa- 
tion. This  should  be  so  full,  so  free,  and  so  complete 
that  the  people  in  their  organic  capacity  as  a  State 
may  ever  be  able  truthfully  to  say  to  every  human 
being  whose  lot  has  been  cast  within  their  jurisdiction  : 
"  From  your  birth  up  we  have  unceasingly  cared  for 
your  well-being,  and  attended  your  footsteps  with  every 
attainable  good.  We  have  done  what  we  could  to 
develop  and  strengthen  all  your  powers.  We  have 
taught  you  to  the  best  of  our  ability  to  know  yourself 
and  understand  your  relations  to  your  fellows.  Now, 
so  long  as  you  conduct  3'ourself  as  a  child  of  the  day 
and  not  of  the  night,  all  the  rights  and  privileges  of 
the  brotherhood  are  freely  yours.  But  if  you  choose  to 
walk  in  the  darkness  rather  than  in  the  light,  if  you 
trample  under  feet  our  laws,  if  you  raise  your  hand 
against  every  man,  let  the  curse  of  your  wrong-doing 
fall  upon  your  own  head,  not  on  ours." 

V 


CHAPTER  IV. 

THE  OWNERSHIP  AND  CONTROI.  OF  PROPERTY. 

Whatever  opinions  men  may  hold  about  our  social 
and  economic  perils,  however  greatly  they  may  differ 
as  to  the  way  they  should  be  met  and  averted,  it  must 
be  allowed  by  all,  that  the  idea  of  property  lies  at  the 
v^ery  foundation  of  every  one  of  these  questions  and 
must  enter  more  deeply  than  any  other  idea  into  their 
final  settlement.  Every  discussion  of  these  problems 
that  has  anything  of  value  in  it  does,  as  a  matter  of 
fact,  centre  around  this  idea.  The  chief  cause  of  the 
current  unrest  and  dissatisfaction  is  the  prevailing 
belief  that  our  present  laws  concerning  the  ownership 
and  use  of  property  are  based  on  force  and  not  on  jus- 
tice. Whether  this  belief  is  justified  by  the  facts  is 
quite  another  matter.  All  I  assert  is  that  the  present 
discontent  is  largely  due  to  it,  and  that  there  is  no  way, 
with  political  power  so  generally  distributed  among 
the  people  as  it  is  to-day,  of  lessening  this  discontent 
except  by  showing  that  this  belief  is  an  ill-founded 
belief,  or  by  so  altering  the  laws  as  to  take  away  its 
ground  and  force. 

The  moment  we  begin  to  reflect  upon  the  matter  we 
cannot  help  seeing  that  the  right  to  property  is  one  of 
the  most  sacred  rights  of  man.  We  cannot  imagine  a 
people  so  degraded  as  to  be  entirely  devoid  of  the  idea 

52 


Ownership  and  Control  of  Property.     '  53 

of  property,  and  no  community  has  ever  enjoyed  pros- 
perity, or  attained  a  high  degree  of  culture  where  the 
idea  was  held  in  slight  esteem.  Indeed,  we  may  justly 
measure  the  progress  of  a  nation  in  civilization  and  true 
worth  by  the  clearness  with  which  it  apprehends  this 
idea  and  the  completeness  with  which  it  applies  it  to 
the  ownership  and  use  of  every  commodity  that  minis- 
ters to  human  need. 

In  our  search,  therefore,  for  the  true  conception  of 
property,  let  us  notice  at  the  outset  that  the  ultimate 
ground  of  the  right  to  property  is  not  first  possession. 
No  man  gains  a  just  title  to  a  thing  simply  because  he 
came  upon  it  before  some  one  else.  Of  course  occupa- 
tion is  one  of  the  signs  of  ownership,  but  it  does  not 
constitute  its  primary  ground.  If  a  person  to-day 
should  discover  a  new  island  in  the  Pacific,  he  would 
not  for  that  reason  alone  have  a  right  to  undisputed 
possession.  Suppose  a  band  of  shipwrecked  sailors 
should  be  cast  upon  its  shores.  He  could  not  justly 
claim  that  the  fruits  and  springs  and  other  means  of 
subsistence  he  found  there  were  exclusively  his.  The 
new  world  was  not  the  property  of  Columbus  because 
he  discovered  it,  nor  did  it  belong  exclusively  to  the 
scattered  bands  of  savages  that  occasionally  roamed 
over  its  surface.  Possession  and  use  of  a  thing  can 
never  be  an  ultimate  ground  of  ownership.  Some- 
thing else  must  come  in  to  determine  whether  or  not 
that  possession  be  just. 

Neither  is  the  right  to  property  founded  on  a  decree 
of  the  government.  "  Property  and  laws,"  sa^'S  Ben- 
tham,  "were  born  together,  and  will  die  together. 
Before  law,  there  was  no  property  ;  take  away  the  law, 
and  all  property  ceases."  The  same  erroneous  view  is 
advocated  by  Montesquieu.     In  speaking  of  the  way 


54  *rhe  Sphere  of  the  State. 


men  have  come  to  adopt  a  civilized  mode  of  life,  he 
says:  "  The  political  laws  gave  them  liberty  ;  the  civil 
laws,  property."  The  natural  consequence  of  this  doc- 
trine is  that  what  the  statute  could  make,  it  could  at 
any  time  unmake.  It  necessitates  the  view  that  there 
is  no  ground  for  the  right  to  property  back  of  the 
decrees  of  government.  If  this  were  true,  justice  would 
have  no  place  in  determining  the  possession  and  use  of 
property.  All  would  be  settled  by  an  arbitrary  fiat. 
Whatever  the  government  decreed  would  be  right.  The 
hard-earned  savings  of  a  lifetime  might  be  legislated 
away  in  a  single  night.  The  most  industrious  would 
have  no  more  of  a  claim  upon  property  as  a  reward  for 
their  industry  than  the  most  indolent.  The  governors 
might  at  any  time  decree  that  all  property  should 
belong  to  themselves  alone,  and  no  voice  could  justly 
be  raised  to  call  the  act  in  question. 

Nor  is  the  real  ground  of  property  its  utility.  True, 
no  community  could  exist  without  property.  True,  no 
community  has  been  able  to  thrive  without  individual 
property.  But  that  only  shows  us  the  result  of  prop- 
erty, not  its  ground.  All  we  can  claim  from  the  stand- 
point of  utility  is  that  the  excellent  effects  of  property 
corroborate  the  rightfulness  of  its  possession  and  use. 

The  true  and  distinctive  ground  of  property  is  labor. 
Property  may  be  defined  as  the  fruit  of  human  labor. 
If  there  were  no  men  in  the  world,  there  would  be  no 
property.  Man  alone  is  the  creator  of  all  property. 
By  his  labor,  he  imparts  an  interchangeable  value  to 
things,  and  this  is  the  beginning  of  his  progress.  Man 
is  capable  of  civilization  because  he  can  produce  wealth. 
Other  animals  are  swifter  in  the  chase,  better  protected 
from  the  cold,  and  better  armed  for  strife.  But  they 
can  not  produce  property  and  therefore  can  not  advance 


Owner sJiip  and  Conti^ol  of  Property.       55 

beyond  a  certain  fixed  limit.  They  can  be  property, 
but  not  the  owners  and  controllers  of  property.  Man, 
however,  because  he  is  active,  intelligent,  and  free ; 
because  he  is  a  person,  can  so  impress  his  personality 
upon  the  objects  of  nature  about  him  by  his  labor  as 
to  acquire  a  just  title  to  property.  In  a  highly  civil- 
ized community  there  is  scarcely  a  clod  of  earth,  or  a 
leaf  that  does  not  bear  that  impress.  Property,  there- 
fore, is  a  human  product.  By  his  labor  man  subdues 
nature  and  appropriates  her  to  his  own  use.  She  thus 
rightly  becomes  his  property.  "Man,"  says  Thiers, 
' '  has  a  first  property  in  his  person  and  his  faculties  ; 
he  has  a  second,  less  intimately  connected  with  his  be- 
ing, but  not  less  sacred,  in  the  products  of  his  faculties, 
which  includes  all  that  are  called  worldly  possessions, 
and  which  society  is  in  the  highest  degree  interested 
in  guaranteeing  to  him  ;  for  without  this  guarantee 
there  would  be  no  labor,  without  labor  no  civilization, 
not  even  necessaries  ;  but  instead,  destitution,  brigand- 
age, and  barbarism." 

Thus  we  see  that  the  maxim  "  To  the  doer  belongs 
his  deed,"  is  as  true  of  property  as  of  morals.  What- 
ever a  man  produces  by  his  own  powers  is  ethically 
his,  and  his  claim  to  ownership  should  be  respected 
against  all  comers.  His  natural  right  to  the  thing 
comes  from  the  labor  he  has  expended  upon  it  and  is 
determined  by  the  extent  of  that  labor.  Whatsoever 
laws  the  civil  power  may  make  concerning  the  posses- 
sion and  use  of  property,  it  can  never  justly  ignore  this 
right,  and  treat  it  as  though  it  did  not  exist,  any  more 
than  it  can  justly  ignore  any  other  natural  right. 

But  a  matter  of  supreme  importance  to  a  thorough 
treatment  of  our  subject  is  the  fact  that  a  natural  right 
is  not  of  necessity  an  absolute  right.    The  natural  right 


56  TJie  Sphere  of  the  State. 

to  property,  like  the  natural  right  to  "  life,  liberty  and 
the  pursuit  of  happiness, ' '  is  never  an  absolute  right. 
These  rights,  one  and  all,  may  justly  be  sacrificed  in 
case  the  needs  of  the  State  require  it.  If  a  man's  life 
and  liberty  are  at  the  disposal  of  the  State,  how  much 
more  is  his  property  ?  The  true  State  is  an  organism,  and 
individuals  are  the  members  of  that  organism.  The 
State  is  the  imit,  the  individual  a  fraction  of  that  unit. 
The  well-being  of  the  organism  as  a  whole  is  the  thing 
of  greatest  moment,  and  should  be  the  point  of  view 
from  which  to  treat  the  various  parts.  In  the  normal 
condition  of  affairs  the  lungs  and  the  heart  are  best  de- 
veloped by  developing  the  whole  body.  Every  human 
being  finds  his  true  place  only  in  the  body-politic,  and 
the  true  sphere  for  the  exercise  of  his  natural  rights 
is  in  his  connection  with  his  fellows  in  their  corporate 
capacity  as  a  State. 

The  natural  right  to  property,  therefore,  is  ultimately 
resolvable  into  a  State  right.  The  people,  as  an  or- 
ganic brotherhood,  are  to  decide  what  disposition  is  to 
.  be  made  of  all  property.  While  the  good  of  the  indi- 
'  vidual  and  the  preservation  of  his  right  to  the  products 
of  his  labors  are  of  great  importance,  the  welfare  of  the 
brotherhood  as  a  whole  is  of  far  more  importance  and 
should  be  the  point  of  view  from  which  the  laws  con- 
trolling the  possession  and  use  of  property  are  finally 
determined.  The  good  of  the  brotherhood  as  a  whole 
is  rarely,  if  ever,  in  collision  with  the  best  interests  of 
its  individual  members.  The  laws  of  property  that 
the  State  enacts  wall  seldom  need  to  set  aside  the  nat- 
ural right  to  property,  but  will  almost  always  confirm 
and  strengthen  that  right.  But  whatever  the  laws 
may  be,  they  should  never  fail  to  be  founded  upon  and 
to  accord  with  the  following  fundamental  maxims  : 


Ow7iership  and  Control  of  Property.      5  7 

I.  The  supreme  ownership  of  all  the  natural  sources 
of  property  is  with  the  State.  The  land,  the  water,  and 
the  air,  and  all  that  they  contain  are  the  common  pos- 
session of  the  race.  They  are  under  the  supreme  con- 
trol of  the  whole  people  in  their  organic  capacity  as  a 
State.  Inasmuch  as  the  support  of  every  man  is  de- 
rived from  the  soil,  the  verj^  existence  of  the  State 
would  be  imperilled  if  the  supreme  ownership  of  the 
soil  were  not  vested  in  the  State  itself.  That  the  com- 
munity, and  not  the  individuals  of  the  community, 
originally  owned  the  land  is  one  of  the  best  attested 
facts  of  history. 

Indeed,  no  State  has  ever  given  up  that  ownership. 
It  has  only  allowed  individuals,  under  certain  condi- 
tions and  limitations,  to  possess  and  use  its  territory. 
If  a  State  should  unconditionallj^  give  up  its  control,  it 
would  thereby  cease  to  be  a  State.  Its  sovereignty 
would  be  gone.  It  would  lose  the  very  thing  that 
makes  it  a  State ;  and,  instead  of  one  State,  as  many 
States  as  there  were  individuals  would  suddenly  spring 
into  being.  If  a  State,  at  any  time,  adopts  the  system 
of  individual  control  of  its  territory,  the  titles  to  the 
land  are  derived  from  the  State,  and  each  citizen  holds 
his  land  ever  subject  to  the  supreme  control  of  the 
State.  Whenever  the  land  of  the  community  gets  into 
the  hands  of  the  few,  to  the  exclusion  and  injury  of  the 
many,  or  whenever  the  good  of  the  State  for  any 
reason  requires  it,  these  titles  may  justly  be  revoked, 
and  individual  control  abolished.  The  State  is  con- 
stantly doing  it  in  the  exercise  of  the  Right  of  Eminent 
Domain,  and  never  was  doing  it  to  such  an  extent  as 
at  present.  We  have  every  reason  to  expect  that,  as 
the  needs  of  intercommunication  increase,  and  the 
people  become  better  acquainted  with  the  many  injuri- 


i8  The  Sphere  of  the  State. 


ous  effects  of  the  present  system,  individual  ownership 
will  be  much  further  limited.  It  is  vain  to  argue  that 
any  system  of  land  tenure  is  of  necessity  the  best 
system.  The  State  should  change  its  system  with  the 
needs  of  the  people,  and  keep  it  as  nearly  as  possible 
in  harmony  with  those  needs. 

2.  The  State  has  the  ultimate  control  of  and  respon- 
sibility for  the  methods  of  acquiring  property.  If  the 
sources  of  property  are  under  the  supreme  control  of 
the  State,  it  is  eas)^  to  see  that  all  property  derived 
from  those  sources  should  be  under  its  control  also. 
No  individual  can  take  any  of  the  materials  of  wealth 
without  the  consent  of  the  State,  and  by  his  labor  make 
them  his  property,  and  the  State  can  never  rightly  give 
this  consent  except  with  the  limitation  that  the 
ultimate  ownership  and  control  of  all  property  is  with 
itself.  While  the  State,  therefore,  fully  recognizes  the 
natural  right  to  property  that  comes  from  labor,  it 
cannot  regard  this  right  as  absolute,  but  must  itself 
determine  in  what  way  and  by  what  means  property  is 
to  be  acquired.  It  must  prescribe  the  legitimate  spheres 
of  labor,  and  check  the  useless  and  wicked  expenditure 
of  labor.  It  should  prevent  by  every  means  in  its 
power  the  acquisition  of  property  by  trickery,  by 
chance,  by  counterfeiting,  by  combinations  to  force  up 
prices  without  increasing  values,  and  by  immoral  prac- 
tices of  any  kind  whatever.  The  State  acts  unworthily 
of  itself,  and  fails  of  its  high  calling,  if  it  does  not 
make  and  execute  such  laws  as  will  result  in  bringing 
the  possession  of  property,  as  far  as  the  conditions 
allow,  into  the  hands  of  those  w^ho  create  it.  Any 
system  of  acquiring  property  that  is  not  based  on  labor 
can  not  contribute  to  the  well-being  of  man.  The 
only  thing  that  is  worthy  of  reward  is  work.     It  is  a 


Ownership  and  Control  of  Property.       59 


sound  principle  of  state-craft,  as  well  as  of  morality, 
that  he  who  will  not  work  shall  not  eat. 

Because  the  government  of  a  State  has  adopted  in 
one  set  of  circumstances  certain  regulations  for  the 
accumulation  of  property,  and  has  found  them  to 
contribute  to  the  general  welfare,  is  no  sufficient  reason 
why  they  should  be  continued  at  another  time,  under- 
a  different  set  of  circumstances.  When  a  countiy  is 
new,  with  much  to  be  done  and  few  to  do  it,  laws 
concerning  the  accumulation  of  property  may,  with 
reason,  greatly  vary  from  what  they  should  be  in  a 
country   where   the  conditions  are  just  the   opposite. 

3.  The  State  is  also  the  supreme  authority  for  deter- 
mining how  property  should  be  used  after  it  is  acquired. 
No  individual  member  of  the  State  has  a  right  to  use 
his  property  as  he  pleases.  If  he  pleases  to  use  it  for 
the  injury  of  the  State,  to  degrade  and  demoraUze  his 
fellows,  the  State  through  its  government  should  put 
a  limit  upon  his  use  of  his  property  and,  if  necessary, 
deprive  him  of  it  altogether. 

The  principle  of  confiscation  is  a  clear  recognition  of 
this  right.  All  nations  agree  that  if  a  citizen  uses  his 
property  to  abet  the  enemy  in  time  of  war,  he  has  vio- 
lated the  first  principles  of  government,  and  has  by 
this  act  cut  himself  off  from  his  normal  relation  to  the 
community,  and  deprived  himself  of  the  advantage 
that  before  belonged  to  him  as  a  member  of  that  com- 
munity. The  original  condition  on  which  the  State 
allowed  him  the  control  of  his  property  has  disappeared, 
and  his  individual  right  to  the  use  of  it  has  disappeared 
also. 

Any  crime  of  any  character  constitutes  a  sufficient 
reason  for  the  State  to  limit  the  use  of  property,  and 
the  more  serious  the  crime  the  greater  may  be  that 


6o  The  Sphere  of  tJic  Slate. 


limitation.  Incorrigible  criminals  of  every  description 
should  not  be  allowed  in  any  degree  the  free  use  of 
propert3%  for  they  constantly  show  by  their  repeated 
acts  of  lawlessness  their  unworthiness  of  such  a  trust. 
Propert}'  that  is  devoted  to  a  good  end,  and  is  accom- 
plishing a  worthy  purpose  in  one  generation  may  not 
do  so  in  another.  The  State,  therefore,  can  never  allow 
property  to  be  devoted  for  an  unlimited  period  to  the 
promotion  of  any  enterprise.  At  any  time  when  the 
State  sees  that  the  welfare  of  the  people  is  not  furthered 
by  such  an  enterprise  it  should  devote  the  property 
that  supports  it  to  some  other  end  that  does  promote 
that  welfare. 

The  doctrine  of  the  inviolability  of  vested  rights 
rests  on  a  false  conception  of  the  State,  and  before  the 
true  conception  has  no  foundation  whatever.  The  true 
State  will  never  allow  any  individual,  or  collection  of 
individuals,  to  hold  and  use  any  given  property  any 
longer  than  such  holding  contributes  to  the  common 
good.  The  moment  it  ceases  to  do  so,  that  moment 
the  vested  right  becomes  violable.  The  government 
of  one  generation  can  never  unalterably  bind  a  future 
generation  as  to  its  use  of  property.  It  can  never 
grant  a  franchise  for  the  use  of  property  that  a  future 
generation  can  not  annul,  or  make  a  contract  that  a 
future  generation  can  not  break.  The  word  ' '  forever ' ' 
in  any  document  concerning  the  possession  and  use  of 
property  is  a  fiction.  The  sooner  it  is  read  out  of  court 
the  better.  Because  a  government  has  once  allowed 
corporations  to  be  formed  for  the  investment  and  use 
of  property  is  no  reason  why  they  should  be  continued 
in  existence  when  they  cease  to  promote  the  public 
welfare.  It  is  not  only  the  right  but  the  duty  of  the 
State  to  legislate  them  out  of  existence  when  it  be- 


\ 


Ownership  and  Control  of  Property.      6i 

comes  clear  that  some  other  method  of  holding  and 
using  property  will  better  further  the  well-being  of  the 
people.  The  laws  concerning  the  use  of  property  are 
just  as  subject  to  change  as  those  concerning  the  acqui- 
sition of  property,  and  it  is  the  duty  of  the  State 
through  its  government  to  have  them  changed  when- 
ever it  is  evident  that  the  good  of  the  organism  as  a 
whole  requires  it. 

An  excellent  illustration  of  the  practical  application 
of  this  doctrine  is  described  hy  General  Emmons  Clark 
in  a  recent  (July,  1891)  number  of  the  Popular  Science 
Monthly.  He  shows  beyond  question  that  the  average 
length  of  human  life  in  New  York  City  has  been  in- 
creased from  thirty  years  in  1865  to  forty  years  in  1890 
by  the  government  repudiating  the  principle  that  every 
man  may  use  his  property  to  support  himself  in  any 
way  he  pleases,  and  itself  setting  the  sanitary  standard 
of  the  homes  landlords  must  provide  for  their  tenants, 
and  tenants  must  pay  for,  if  they  are  to  be  allowed  to 
live  in  them. 

4.  What  we  have  said  concerning  the  accumulation 
and  use  of  property,  is  equally  true  of  the  transfer  and 
descent  of  property.  Here  also  the  State  alone  has  the 
ultimate  and  supreme  control.  With  it  rests  the  final 
responsibility  for  seeing  that  they  both  are  accom- 
plished in  such  a  manner  as  always  to  keep  the  pos- 
session and  enjoyment  of  property  as  far  as  possible 
in  the  hands  of  those  who  work.  For  there  is  no  way 
of  making  property  contribute  to  the  welfare  of  the 
community  as  a  whole,  or  of  its  individual  members, 
unless  the  State  has  the  right  to  determine  what  power 
of  transfer  the  holder  shall  have  as  between  himself  and 
his  contemporaries,  and  how  far  his  acts  shall  control 
the  use  made  of  his  property  by  the  generations  that 


52  The  Sphere  of  the  State. 

follow  him.  All  contracts,  bequests,  deeds  of  sale, 
wills,  and  the  like  must  therefore  be  subject  to  the  au- 
thority of  the  State,  and  if  made  without  that  authority 
must  be  regarded  as  having  no  binding  force. 

The  natural  right  to  property  that  comes  from  labor 
implies  the  right  to  the  free  exchange  of  its  products, 
but  there  is  no  such  undisputed  right  to  control  its 
descent.  To  what  extent  a  dead  hand  should  be  al- 
lowed to  hold  property  or  a  dead  brain  to  control  it  is 
a  serious  question.  It  is  perfectly  clear  that  no  such 
bequests  of  property  should  stand,  if  they  plainly  inter- 
fere with  the  progress  of  humanity.  But  if  the  State 
sees  fit  to  grant  the  privilege  on  the  ground  that  labor 
will  be  most  effectually  stimulated  thereby  it  should  at 
best  be  an  exceedingly  limited  privilege.  For  no  man 
can  possibly  foresee  what  will  be  the  need  of  all  coming 
generations,  and  thus  he  can  not  in  any  sense  possess 
a  right  to  say  what  disposition  shall  be  made  of  what 
was  once  his  property  to  supply  that  need. 

The  superstitious  reverence  that  many  still  have  for 
the  dead  hand  and  brain  would  disappear  in  the  light 
of  a  true  conception  of  the  sacredness  of  contracts. 
Living  beings  alone  can  make  contracts,  a  dead  person 
cannot  make  a  contract  with  a  live  one,  or  a  live  per- 
son with  a  dead  one.  A  father  cannot  make  a  binding 
contract  for  his  own  children  even  after  a  certain 
period.  Honor  and  reverence  are  due  to  all  the 
worthy  who  have  preceded  us,  but  these  things  can 
never  rightly  be  made  a  matter  of  contract.  The 
w^ealth  of  the  past  would  be  of  comparatively  little 
value  to  us  if  we  did  not  constantly  renew  it.  There 
can  be  no  moral  obligation  therefore  upon  the  State  to 
have  property  descend  exactly  as  the  fathers  desire. 
The  wealth  of    any  generation  is  to  be  used  pre- 


Ownership  and  Control  of  Propeidy.      63 

eminently  for  the  good  of  that  generation,  to  supply- 
present  needs,  to  establish  and  maintain  the  ideas  of 
the  present,  not  to  keep  alive  and  extend  the  exploded 
notions  of  the  past.  Many  of  the  conditions  attached 
to  bequests,  under  our  present  system,  are  frequently 
"  more  honored  in  the  breach  than  in  the  observance." 
Clauses  in  wills  are  often  justly  declared  null  and  void 
by  the  courts,  because  they  require  the  legatee  to  do 
something  that  is  counter  to  "public  policy."  The 
State,  acting  of  course  through  its  government,  has 
not  only  the  right  but  the  duty  to  assume  full  control 
of  the  bequests  and  legacies  of  any  institution,  chari- 
table, educational,  or  religious,  that  is  supporting  prac- 
tices or  promulgating  doctrines  that  are  injurious  to 
the  public  good,  and  devote  them  to  some  other  pur- 
pose that  meets  the  needs  of  the  present,  and  advances 
the  civilization  of  man. 

Under  our  present  conditions  an  inheritance  tax, 
righteously  administered,  may  reasonably  be  expected 
to  afford  us  a  measure  of  relief.  The  State  should 
never  do  anything  to  deaden  the  enterprise  of  its 
citizens,  but  should  encourage  in  every  way  the  dis- 
covery of  new  and  easier  methods  of  providing  for  the 
needs  both  of  mind  and  body.  But  when  for  any 
reason  the  property  of  the  community  has  become 
concentrated  into  the  hands  of  a  few,  injury  to  the 
public  well-being  of  the  most  disastrous  character  is 
almost  sure  to  follow.  So  great  is  the  power  that  the 
possessors  of  vast  fortunes  have  over  the  daily  lives 
and  services  of  great  multitudes  that  when  more  than 
one  half  of  the  property  of  the  United  States  with  its 
sixty-five  millions  of  inhabitants  is  owned  by  one 
hundred  thousand  men,  it  is  certainly  time  to  call  the 
justice  of  our  laws  seriously  in  question. 


64  The  Sphere  of  the  State. 

No  tyranny  is  so  dangerous  to  public  life  and  morals 
as  the  tyranny  of  money.  For  there  will  be  little 
virtue  left  in  a  people  all  of  whose  actions  are  de- 
termined for  them  by  dollars  and  cents. 

It  maj^  reasonably  be  doubted  whether  any  human 
being  in  the  short  space  of  threescore  years  and  ten, 
to  say  nothing  of  onescore  years,  can  justly  acquire 
by  his  labor  the  control  over  the  lives  of  his  fellows 
represented  by  ten  millions  of  dollars,  or  even  by  five 
millions.  At  all  events,  one  of  the  imperative  needs 
of  our  time  is  an  effectual  check  upon  the  amazingly 
skilful  and  elaborate  devices,  now  so  common,  of  get- 
ting possession  of  the  property  of  the  country  without 
rendering  an  equivalent.  There  is  every  reason  to 
suppose  that  a  limit  upon  the  power  of  inheritance 
will  be  such  a  check.  The  government,  being  finite, 
may  often  be  unable  to  discover  to  what  extent  an 
individual  has  brought  under  his  control  the  property 
of  the  country.  At  his  death  this  is  far  less  difficult. 
If  the  courts  were  empowered  to  assess  and  collect  an 
inheritance  tax,  graduated  in  amount  according  to  the 
needs  and  conditions  of  the  legatees,  the  evil  effects 
of  vast  fortunes,  continuing  in  the  hands  of  single 
individuals,  would  be  largely  mitigated. 

We  should  greatly  err  in  our  conception  of  this 
matter  of  a  tax  on  large  inheritances,  if  we  thought  it 
collided  with  all  inheritance.  It  is  only  an  attempt  to 
discriminate  between  just  inheritance  and  unjust. 
There  is  nothing  in  this  position  that  needs  to  antago- 
nize the  views  so  well  expressed  by  Charles  Comte, 
who,  in  combating  the  extreme  opinion  of  some  of  his 
contemporaries  on  this  subject,  that  no  inheritance  is 
justifiable,  says:  "  If  I  wished  to  refute  the  errors, 
borrowed  from  the  Abbe  Raynal,  concerning  the  right 


Ownership  and  Control  of  Property.      65 


of  children  to  enjoy  the  goods  left  by  their  parents 
when  dying,  I  could  not  help  calling  attention  to  the 
fact  that  the  family  spirit  is  one  of  the  principal  causes 
of  the  production  and  preservation  of  wealth  ;  that  a 
man,  to  insure  his  children  a  living,  performs  labor 
and  undergoes  privations,  to  which  no  other  consider- 
ation would  induce  him  to  submit.  I  would  point  out 
to  my  readers  that — if  the  wealth  of  a  man  were  not  to 
pass  to  his  descendants — he  could  derive  scarcely  any 
real  advantage  from  his  property,  even  during  his 
lifetime.  I  would  show  to  them,  finally,  that  a  nation 
in  which  children  were  excluded  from  succeeding  to 
their  parents  would,  in  a  very  few  years,  fall  a  great 
deal  lower  than  the  inhabitants  of  Egypt  under  the 
domination  of  the  Mamelukes,  or  the  Greeks  under  the 
domination  of  the  Turks." 

We  may  give  full  consideration  to  these  views  and 
still  hold  that  under  certain  conditions  a  limitation 
should  be  put  upon  the  inheritance  of  these  "goods," 
and  that  the  case  of  vast  fortunes  is  one  of  those  con- 
ditions. In  the  United  States  the  laws  of  the  several 
States  in  almost  every  instance  already  forbid  the 
willing  of  property  beyond  two  generations.  Still 
greater  limitations  under  the  present  circumstances 
would  undoubtedly  impede  the  development  of  a  plu- 
tocracy and  conser\x  the  general  good.  A  large  inheri- 
tance tax  on  all  sums  over  a  certain  maximmn  descend- 
ing to  a  single  individual,  and  a  gradually  diminishing 
tax  on  all  sums  down  to  a  certain  minimum,  as  the 
circumstances  and  needs  of  the  legatees  shall  warrant, 
would,  in  all  probability,  do  much  toward  mitigating 
the  gross  injustice  in  the  distribution  of  property,  no- 
where more  strikingly  and  painfully  apparent  than  in 
those  countries  where  wealth  most  abounds.     For,  as 


66  The  Sphere  of  the  State. 

Prof.  Fawcett  so  truthfully  expresses  it,  "  every  work- 
man must  be  constantly  reminded  of  the  fact  that 
while  numbers  are  unable  to  obtain  a  sufBciency  of  the 
necessaries  of  life,  others  have  so  much  superfluous 
wealth  that  they  are  able  to  squander  it  in  useless  and 
mischievous  luxuries,  and  never  devote  themselves  to 
one  hour's  useful  employment." 

After  all  I  have  said  on  this  subject  of  property  I 
have  to  admit  that  there  is  nothing  new  about  these 
doctrines.  For  they  are  as  old  as  history  itself,  and 
were  as  clear  to  the  mind  of  the  writer  of  Genesis  as 
they  could  be  to  any  mind  of  to-day.  The  fact  is  that 
the  first  people  to  discover  and  to  proclaim  to  the 
world  the  true  conception  of  the  origin  and  nature 
of  the  right  to  property  were  the  ancient  Hebrews. 
From  the  first  of  Genesis  to  Revelation  the  ground  of 
the  ownership  of  property  is  always  labor,  and  the 
order  of  ownership  is  always  first  God,  then  the  race, 
and  then  the  individual.  Neither  Moses  nor  Jesus 
ever  put  the  individual  before  the  race,  or  in  any  way 
called  this  order  in  question.  That  "  The  earth  is  the 
I/Ord's  and  the  fulness  thereof,"  for  the  reason  that 
"  In  the  beginning  God  created  the  heaven  and  the 
earth,"  was  the  starting-point  of  all  Hebrew  thought, 
and  their  next  great  central  idea  was  that  the  first  pair 
who  were  the  first  representatives  of  the  race,  and  his- 
torically the  first  State,  being  children  of  God  and 
endowed  with  divine  powers,  got  their  right  to  the 
possession  of  the  earth  and  its  contents  by  obedience 
to  the  divine  command  to  ' '  subdue  it ;  and  have 
dominion  over  the  fish  of  the  sea,  and  over  the  fowl  of 
the  air,  and  over  every  living  thing  that  moveth  upon 
the  earth."  Individual  ownership  they  always  re- 
garded as  secondary  to  race  ownership,  the  only  abso- 


Ownership  and  Control  of  Property.      6^ 

lute  earthly  authority  over  things  being  the  com- 
munity as  a  whole,  to  which  individual  authority  and 
power  were  always  subordinate. 

Only  from  the  true  conception  of  the  State  as  a 
brotherhood  can  we  derive  a  true  conception  of  the 
rights  and  duties  of  each  member  of  that  brotherhood. 
Only  from  the  conception  of  property  as  ultimately 
owned  and  controlled  by  the  State  can  we  come  to  a 
true  conception  of  the  property  right  of  each  citizen  of 
the  State.  Kvery  man  should  be  taught  to  have  a 
reverence  for  property,  but  it  should  not  be  a  super- 
stitious or  irrational  reverence.  If  his  notion  of  the 
right  to  the  possession  and  use  of  property  harmonizes 
with  the  biblical  conception,  it  harmonizes  with  the 
best  economic  philosophy  and  the  highest  interests  of 
man.  Because  a  thing  is  old  is  no  good  reason,  as 
some  seem  to  suppose,  for  calling  it  in  question  or 
ignoring  its  existence  altogether.  The  only  fitting 
watchword  for  the  treatment  of  property  in  our  day, 
is  ' '  Back  to  Moses,  Back  to  Christ. ' '  Any  religious 
organization,  whatever  its  other  excellencies  may  be, 
has  certainly  ceased  to  be  Christian,  if  it  does  not  pro- 
claim far  and  wide  these  doctrines  of  property,  and  do 
all  in  its  power  to  have  them  recognized  and  followed. 


CHAPTER  V. 

CORPORATIONS  AND  TH^IR   PLACE  IN  THE  STATE. 

Why  is  it  that  in  every  civilized  country  on  the  earth 
in  our  time  one  may  obtain  any  morning  for  a  few 
pennies  a  full  account  of  all  the  chief  events  of  the 
world  for  the  day  preceding,  when  if  he  should  attempt 
to  gather  the  same  information  by  his  own  direct  effort 
millions  of  dollars  would  not  suffice  for  the  purpose  ? 
It  is  because  of  corporations.  Why  is  it  that  if  a 
traveller  wishes  to  go  from  New  York  to  San  Francisco 
or  from  Paris  to  St.  Petersburg,  he  can  now  do  it  for  a 
few  dollars  with  all  the  safety  and  comfort  that  he  could 
command  if  he  personally  owned  every  inch  of  the  road 
and  personally  superintended  all  its  traffic  ?  It  is  be- 
cause of  corporations.  Why  is  it  that  in  nearly  all  the 
cities  of  the  civilized  world  any  sick  person — man, 
woman,  or  child, — if  the  case  requires  it,  can  now  have 
the  service  of  the  best-trained  nurses  and  the  most  skil- 
ful physicians  without  any  compensation  whatever? 
It  is  because  of  corporations. 

It  is  hardly  too  much  to  say  that  without  corpora- 
tions the  world  would  sink  back  into  the  condition  of 
the  dark  ages,  if  not  into  positive  barbarism.  For  no 
organized  effort  at  all  worthy  of  our  day  could  be  put 
forth  for  the  progress  of  mankind  in  any  direction  with- 
out their  ai 

68 


Corporations  and  Their  Place  in  the  State.    69 

Combination  is  the  watchword  of  this  modern  era. 
It  is  an  age  of  progress  for  that  reason.  Free,  unbridled 
competition  is  the  chief  characteristic  of  the  lawless 
savage,  and  becomes  less  and  less  a  reality  as  men  ad- 
vance in  knowledge  and  civilization.  There  never  was 
a  time  in  the  history  of  the  world  when  corporations 
were  so  numerous  and  powerful  as  now,  and  never  a 
time  when  they  were  so  much  needed,  or  did  so  much 
good.  We  have  every  reason  to  expect  that  as  the 
world  progresses  in  intelligence  and  culture,  corpora- 
tions will  be  far  more  necessary  than  they  are  now  and 
far  more  influential. 

But  what  is  a  corporation?  What  are  we  talking 
about  when  we  speak  of  the  actions  of  a  corporation  ? 
It  is  sufficiently  exact  for  our  purpose  to  define  a  cor- 
poration as  an  artificial  person  that  the  State  creates  to 
do  the  work  that  cannot  be  done,  or  so  well  done,  by 
an  actual  person.  Suppose,  for  example,  the  public 
welfare  required  a  railroad  communication  between  two 
cities  five  hundred  miles  apart.  No  one  man  or  half- 
dozen  men  would  have  the  means  to  build  it.  In  such 
a  condition  of  affairs,  the  State  allows  a  corporation  to 
be  formed  for  the  purpose.  Small  sums  of  money  from 
many  quarters  pour  in,  the  road  is  built,  and  all  reap 
the  benefit. 

Though  in  a  sense  mythical  beings,  corporations 
are,  nevertheless,  actual  members  of  the  community. 
They  are  allowed  to  perform  nearly  all  the  acts  of 
real  persons,  while  at  the  same  time  they  are  freed 
from  many  of  their  limitations.  In  the  quaint  language 
of  Lord  Coke,  a  corporation  "is  invisible,  immortal, 
has  no  soul,  neither  is  it  subject  to  the  imbecilities,  or 
death,  of  the  natural  body."  A  little  explanation  of 
these  terms  is  desirable.     A  corporation  is  invisible,  in 


70  The  Sphere  of  the  State. 

the  sense  that  when  all  the  members  are  present  one 
does  not  see  the  corporation.  It  may  sue  and  be  sued, 
but  when  the  members  appear  the  corporation  does  not 
answer  the  writ.  It  may  own  property,  but  none  of  it 
belongs  to  the  individual  members.  It  is  immortal,  in 
the  sense  that  its  youth  and  vigor  are  unaffected  by  the 
lapse  of  time.  When  its  members  change  it  does  not 
change  with  them,  and  when  they  die  it  does  not  of 
necessity  cease  to  be. 

Judge  Cooley,  in  his  Laws  of  Corporations,  summa- 
rizes the  powers  and  privileges  of  corporations  as  follows : 
"  First,  the  power  of  perpetual  succession  of  members  ; 
second,  the  power  to  sue  and  be  sued  in  the  corporate 
name  and  to  transact  in  that  name  all  such  business  as 
is  within  the  intent  of  the  grant ;  third,  to  purchase,  take, 
and  hold  property,  and  to  sell  and  convey  the  same, 
except  as  may  be  forbidden  ;  fourth,  to  have  a  common 
seal  under  which  to  transact  its  business,  and  to  alter 
the  same  at  pleasure  ;  fifth,  to  make  by-laws  for  its 
government,  provided  they  be  not  unreasonable  or 
inconsistent  with  law." 

But  the  thing  that  is  of  the  greatest  importance  for  us 
to  observe  in  all  corporations  is  the  fact  that,  whatever 
their  character  or  mission,  they  are  creatures  of  the 
State.  Whatever  power  they  have,  they  get  from  the 
State,  and  they  always  remain  subject  to  the  will  of 
the  State.  No  government  can  confer  sovereign  power 
upon  a  corporation.  For  it  cannot  give  to  another 
what  it  does  not  itself  already  possess.  Sovereignty 
belongs  to  the  State  alone — to  the  people  in  their 
organic  capacity  as  a  State.  If  the  State  for  any  reason 
should  give  up  its  sovereignty  to  any  of  its  creatures, 
it  would  cease  to  be  a  State.  The  government  of  any 
generation  can  rightly  act  only  for  the  people  of  that 


Corporations  and  Their  Place  i7t  the  State.     7 1 

generation.  It  cannot  bestow  upon  a  corporation  any 
privilege  that  the  government  of  the  next  generation 
cannot  take  away. 
-^  The  power  to  create  involves  the  power  to  destroy. 
If  the  acts  of  any  corporation  within  the  limits  of  the 
State  are  clearly  injurious  to  the  public  welfare,  it  is 
the  right  and  duty  of  the  State,  through  its  govern- 
ment, to  amend  the  charter  of  such  a  corporation  ;  or, 
if  needs  be,  annul  it  altogether.  It  surely  can  never 
be  an  obligation  upon  the  State  to  continue  an  artificial 
person,  an  acknowledged  myth,  in  existence  and 
power,  when  it  would  cut  oflf  from  itself  a  natural  per- 
son—one of  its  own  members— for  similar  misconduct. 
"  It  is  certainly  not  within  the  province  of  the  State," 
says  Judge  Cooley,  "  to  bind  itself  by  contract  to  per- 
mit those  things  which  are  immoral,  and  which  are 
prejudicial  to  the  State  for  that  reason." 

The  State  has  the  right  to  prohibit  at  any  time  the 
doing  of  anything  that  collides  with  the  well-being  of 
the  people,  whatever  vested  rights  may  be  affected 
thereby.  If  the  manufacture  and  sale  of  intoxicating 
drinks,  for  example,  were  clearly  detrimental  to  the 
public  welfare,  it  would  be  the  duty  of  the  State  to 
suppress  the  traffic,  even  though  such  suppression 
would  exclude  all  those  corporations  which  had  been 
established  for  the  manufacture  of  such  liquors  firom 
any  further  exercise  of  their  corporate  powers.  The 
same  may  be  said  of  lottery  corporations  and  all  similar 
forms  of  business  adventure.  To  hold  any  other  doc- 
trine on  this  subject  would  necessitate  our  maintaining 
that  a  public  nuisance  could  at  any  time  be  made  per- 
petual by  simply  giving  the  parties  responsible  for  it 
corporate  powers. 

Corporations,  then,  being  the  creatures  of  the  State, 


y2  The  Sphere  of  the  State. 

existing  solely  for  the  promotion  of  the  well-being  of 
the  State,  the  attitude  of  the  State  towards  them  ought 
to  be  determined  by  their  success  or  failure  to  promote 
this  well-being.  It  should  be  the  purpose  of  every 
government  to  allow  to  every  citizen  the  greatest  free- 
dom of  action  that  is  consistent  with  the  highest  free- 
dom of  all.  The  government  should  never  undertake 
to  do  anything  by  its  own  direct  action  that  can  better 
be  done  some  other  way.  If  the  corporations  it  allows 
to  be  formed  accomplish  the  work  of  the  State  better 
than  it  could  do  it  itself,  they  should  be  continued. 
Those  that  do  not  should  be  abolished.  It  is  easy  to 
see,  therefore,  that  the  attitude  of  the  State  towards 
corporations  may  greatly  vary.  It  may  encourage 
their  operations  in  one  generation  and  not  in  another. 
It  may  rightly  annul  a  franchise  under  one  set  of  cir- 
cumstances, and  restore  it  again  under  another. 

But  whenever  the  economic  conditions  of  a  State 
necessitate  the  creation  of  these  artificial  persons,  when- 
ever the  business  of  a  nation  becomes  so  extensive  and 
complex  that  it  cannot  be  carried  on  successfully  by 
individual  enterprise  and  can  by  corporate,  a  definite 
and  consistent  plan  should  be  devised,  not  only  for 
bringing  them  into  being,  but  especially  for  so  con- 
trolling their  conduct  that  they  may  be  kept  to  the 
legitimate  realization  of  their  purpose. 

It  has  often  been  remarked  (and  there  is  considerable 
truth  in  the  statement)  that  no  treatise  on  corporation 
law  is  of  much  value  in  this  country  a  half  dozen  years 
after  its  first  issue.  The  reason  of  this  is  that  no  two 
commonwealths  in  the  Union  have  the  same  method 
of  forming  corporations,  or  the  same  way  of  treating 
them  after  they  are  allowed  to  come  into  being.  The 
confused  mass  of  statutes  that  exist  in  many  common- 


Corporations  and  Their  Place  in  the  State.     73 


wealths  on  the  subject  is  annually  made  still  more  per- 
plexing by  the  amendments  of  the  successive  legisla- 
tures and  the  conflicting  decisions  of  the  courts.  No 
writer,  however  industrious  he  may  be  in  gathering 
the  facts,  or  ingenious  in  putting  them  together,  can 
possibly  make  them  into  a  consistent  system.  If  he 
should  perchance  succeed  for  the  moment  in  doing  so, 
he  could  not  be  at  all  sure  that  the  system  of  to-day 
would  continue  to  be  the  system  of  to-morrow. 

This  lack  of  system  has,  it  is  true,  some  advantages. 
It  allows  a  greater  number  of  experiments  to  be  tried 
under  a  greater  variety  of  conditions,  and  the  evil  con- 
sequences of  a  bad  experiment  to  be  confined  to  nar- 
rower limits.  But  whatever  may  have  been  true  of 
the  early  history  of  our  country,  the  time  for  such  ex- 
perimentation in  this  matter  has  now  passed.  Our 
commercial  prosperity  as  a  people  is  very  largely  de- 
pendent upon  its  discontinuance.  The  confusion  and 
conflict  that  now  exist  throughout  the  entire  Union  on 
this  subject  can  never  be  made  to  disappear  so  long  as 
the  legislature  of  Pennsylvania  continues  "  to  spawn 
corporations  ' '  upon  other  commonwealths  which  it 
would  not  permit  to  do  business  within  its  own  borders, 
and  so  long  as  it  is  possible  truthfully  to  say  that ' '  the 
snug  harbor  of  roaming  and  piratical  corporations  is 
the  little  state  of  West  Virginia." 

As  matters  now  are,  in  some  parts  of  our  country 
corporations  may  be  formed  for  almost  any  conceivable 
purpose,  with  practically  unlimited  capital  stock,  with 
no  tax  except  an  annual  one  of  fifty  dollars,  with  no 
designated  place  or  time  for  transacting  business,  with 
few  limitations  as  to  the  liability  of  the  directors  and 
stockholders,  and  with  no  required  public  reports.  The 
only  way  to  prevent  the  country  from  being  overrun 


74  The  Sphere  of  the  State. 


by  an  irresponsible  horde  of  these  artificial  persons, 
nian}^  of  them  simply  seeking  ' '  whom  they  may  de- 
vour," is  to  have  all  the  commonwealths  strenuously 
insist  upon  it  that  no  corporation  shall  be  allowed  to 
operate  within  their  borders  that  fails  to  conform  in  its 
formation  and  conduct  to  the  standard  of  requirements  i 
imposed  upon  all.  If  worse  comes  to  worse,  and  the 
people  cannot  be  protected  in  any  other  way  from  these 
piratical  institutions  that  are  continually  flitting  about 
over  the  country,  the  national  government  should  take 
up  the  matter,  and,  in  the  furtherance  of  its  duty  "to 
regulate  commerce  among  the  several  States,"  bring 
these  creatures  under  rational  control. 

No  corporations  should  anywhere  be  allowed  to 
come  into  being  solely  for  the  purpose  of  unloading 
upon  the  public  an  unprofitable  business.  To  what 
extent  nefarious  schemes  of  this  sort  have  been  carried 
on  unhindered  in  the  past,  is  illustrated  by  the  history 
of  the  mining  industry.  Mining  companies  are  not 
uncommon  with  a  nominal  capital  of  many  millions  of 
dollars  that  have  never  declared  a  dividend,  and  whose 
stock  has  never  in  their  whole  history  had  any  appre- 
ciable value.  In  many  other  departments  of  business, 
companies  are  formed  solely  for  the  purpose  of  allow- 
ing the  initial  board  of  directors  to  sell  out  for  a  mere 
trifle  all  the  interests  of  the  stockholders  to  others. 

These  evils  in  regard  to  corporations  have  been  ex- 
perienced in  all  lands.  In  England,  where  much  more 
has  come  to  be  known  about  the  operations  of  these 
"  promoters  of  industry  "  than  in  this  country,  it  was 
estimated  in  1886  that  "  there  were  afloat  in  the  Eng- 
lish stock  market  fully  two  billion  pounds  of  specula- 
tive securities,  of  which  at  least  a  fourth  were  merely 
gambling  counters. ' '     To  attempt  to  regulate  this  in- 


Corporations  and  Their  Place  in  the  State.     75 

corporation  f^ver  by  a  return  to  the  old  system  of 
' '  special  concessions  ' '  from  the  government  would  be 
to  make  the  remedy  worse  than  the  disease.  When 
the  right  to  organize  joint-stock  companies  was  a  favor 
granted  by  a  special  legislative  act,  and  not  a  right 
conferred  \yy  general  statute,  men  made  a  business  of 
lobbying  for  charters,  and  afterwards  selling  them  to 
the  highest  bidder.  In  this  way  charters  were  ob- 
tained, in  many  instances,  for  the  organization  of 
' '  State  banks, ' '  which  came  so  near  sending  the  whole 
country  into  financial  ruin.  The  infinite  superiority 
of  our  national-bank  system  should  teach  us  a  lesson. 
Unless  we  devise  some  similar  system  for  corporations, 
and  insist  upon  its  being  put  into  actual  and  universal 
execution,  it  is  hard  to  see  how  the  most  disastrous 
business  reverses  can  ere  long  fail  to  follow. 

The  first  thing  corporations  generallj^  wish  to  do 
after  they  begin  to  operate  is  to  borrow.  The  statisti- 
cian of  the  Interstate  Commerce  Commission  clearly 
shows  that  many  of  the  minor  railroad  lines  were  built 
on  wholly  borrowed  capital.  Many  even  of  the  larger 
and  more  powerful  roads  are  bonded  for  nearly  three 
fourths  of  their  entire  capitalization.  The  power  of 
these  artificial  persons  to  borrow  should  not  be  left  to 
their  own  option.  It  is  in  this  direction  that  they  are 
most  inclined  to  abuse  their  corporate  privileges.  We 
should  never  lose  sight  of  the  fact  that  they  are  the 
creatures  of  the  State.  For  they  are  brought  into 
existence  by  the  State,  and  the  State  is  responsible  for 
their  conduct.  It  is  clearly  the  duty  of  the  State  to 
confine  their  power  to  borrow  money  to  clearly  defined 
limits.  Massachusetts  forbids  a  railroad  corporation 
to  bond  itself  to  an  amount  exceeding  the  total  of  its 
paid-up  share  capital.     Every  State  should  have  some 


76  The  Sphere  of  the  State. 


similar  limit  for  every  class  of  corporations,  and  after 
thoroughly  competent  experts  have  determined  upon 
this  limit,  those  entrusted  with  the  execution  of  the 
laws  should  see  that  it  is  rigidly  observed. 

But  before  the  State  can,  in  any  adequate  manner, 
regulate  the  acts  of  corporations  it  must  abolish  secrecy 
of  management.  If  all  companies  were  obliged  to 
make  an  annual  report  of  their  condition  to  the  govern- 
ment many  of  the  current  abuses  of  corporate  power 
would  disappear.  Mismanagement  of  the  property  of 
a  corporation  could  not  long  continue  if  its  actual  status 
were  known  to  the  community  at  large  as  well  as  to 
the  ruling  majority  of  its  board  of  trustees.  "  Expe- 
rience seems  to  have  demonstrated  quite  conclusively," 
says  Professor  Warner  {Popular  Science  Mo7iihly,  July, 
1890),  "that  a  being  at  once  so  vulnerable  and  so 
powerful  as  a  corporation  cannot  afford  to  keep  its 
affairs  entirely  to  itself,  and  if  it  could  afford  to  do  so, 
the  public  cannot  afford  to  let  it," 

It  might  be  argued  that  even  legitimate  enterprises 
would  be  oppressed  by  the  government  if  their  wealth 
were  annually  exposed  to  full  public  view.  But  are 
they  not  more  likely  to  be  fairly  treated  when  the 
actual  state  of  affairs  is  fully  known  than  when  the 
people  are  left  to  draw  on  their  imagination  for  their 
facts  ?  The  unjust  and  unreasonable  attacks  that  are 
made  on  corporations  are  mainly  due  to  the  suspicions 
aroused  by  the  persisted  effort  of  their  managers  to 
keep  the  public  in  ignorance  of  their  true  character. 
Secrecy  awakens  distrust.  If  it  does  not  cloak  abuses, 
it  is  practically  regarded  as  doing  so.  Especially  is 
this  true  in  the  case  of  a  matter  about  which  the  people 
have  pre-eminently  the  right  to  full  and  accurate 
knowledge.     For  they  are  wholly  responsible,  in  their 


Corporations  and  Their  Placid,  in  the  State.     77 


organic  capacity  as  a  State,  for  the  very  existence  of 
corporations.  In  addition,  they  have  no  way  of  pun- 
ishing these  artificial  persons  for  their  misconduct  as 
they  have  in  the  case  of  real  persons.  They  ought 
not,  therefore,  to  allow  them  the  same  liberties.  There 
is  no  other  rational  way  of  regulating  their  conduct 
and  keeping  them  in  due  control,  than  by  requiring 
them  to  give  an  account  of  themselves  to  the  properly 
constituted  authorities  as  often  as  the  pubHc  interest  in 
their  condition  and  character  may  require. 

Furthermore,  secrecy  of  management  gives  an  unjust 
advantage  to  the  managers  of  corporations  in  their 
efforts  to  maintain  their  power.  They  alone  know 
who  the  stockholders  are,  and  thus  what  combinations 
to  make  among  them  in  order  to  keep  themselves  in 
control.  They  alone  know  when  the  business  is  losing 
and  thus  can  sell  their  stock  at  high  prices  before  the 
public  announcement  that  the  corporation  is  in  difl&- 
culty.  They  alone  know  when  the  business  is  rapidly 
gaining,  and  thus  can  get  an  equally  unjust  advan- 
tage over  the  other  shareholders  and  the  general 
public  in  purchasing  stock.  If  corporations  were  com- 
pelled to  make  a  regular  statement  of  their  general 
condition  to  the  State,  these  evils  would  be  reduced  to 
the  minimum.  We  ought  to  be  willing  to  learn  some- 
thing from  older  nations  on  this  subject.  In  Europe 
they  have  greatly  reduced  the  number  of  fraudulent 
corporations  by  this  method  ;  and  there  is  every  reason 
to  believe  that  the  time  has  fully  come  for  us  to  follow 
their  example. 

Another  thing  must  needs  be  done,  however,  before 
we  can  reasonably  expect  any  permanent  progress  to 
be  made  in  the  reform  of  corporations.  Directors  must 
be  held  to  a   far  greater  degree  of  responsibility  for 


78  TJie  Sphere  of  the  State. 

their  conduct  than  they  are  at  present.  In  nearly  all 
parts  of  the  Union,  existing  legislation  gives  the 
absolute  control  of  corporate  enterprises  into  the  hands 
of  bare  majorities.  The  majority  of  the  holders  on 
record  at  the  time  of  the  closing  of  the  books  of  a  cor- 
ijoration  have  the  power  at  the  annual  election  to  choose 
the  whole  board  of  directors,  the  interests  of  the  minority 
being  wholly  at  their  mercy.  If  voting  by  proxies  be 
allowed,  it  is  possible  by  present  methods  of  book- 
keeping for  a  board  of  directors  to  take  complete 
possession  of  a  corporation,  in  which  neither  they  nor 
the  constituency  that  elected  them  have  any  substantial 
interest.  But  corporations  may  be  controlled  by  small 
minorities  wholly  apart  from  a  resort  to  such  methods. 
According  to  our  present  laws  the  ownership  of  two 
thousand  million  dollars,  or  less  than  25  per  cent,  of 
the  total  of  railroad  capital,  insures  absolute  control  of 
nearly  nine  thousand  million  dollars  and  the  entire 
railroad  system  of  the  countrj^  For  the  total  bonded 
debt  of  the  railroads  of  the  United  States  is  consider- 
.  ably  greater  than  the  total  of  their  share  capital. 
'  The  chief  trouble  with  the  plan  of  limiting  the  num- 
ber of  votes  that  can  be  cast  by  any  one  person,  the 
plan  now  in  vogue  in  Massachusetts  as  to  railroads,  is 
that  it  can  be  so  easily  evaded.  Dummy  stockholders 
are  manufactured  to  take  the  place  of  real  ones  with 
such  facility  that  few  are  able  to  tell  the  difference. 
Minority  representation  seems  to  be  the  only  way  of 
checking  these  evils.  Yet  minority  representation 
without  proper  legislation  to  support  it  regarding  the 
action  of  the  directors  would  of  itself  be  of  little  value. 
The  State  of  Maryland  and  the  city  of  Baltimore  have 
the  power  of  appointing  a  minority  of  the  directors  of 
the  Baltimore  and  Ohio  Railroad,   but  the  privilege 


Corporations  and  Their  Place  in  the  State.     79 

does  not  seem  to  be  to  them  of  any  real  benefit.  To 
make  directors  personally  responsible  for  the  debts  of  a 
corporation  would  probably  result  in  this  country  at 
present  in  a  scarcity  of  such  officers.  Yet  the  plan  is  a 
just  one,  and  ought  eventually  to  become  universal. 
It  is  in  successful  operation  in  Europe,  and  we  ought 
to  be  looking  forward  to  the  time  when  it  will  be 
adopted  here. 

Beyond  all  question  the  responsibility  of  directors 
should  be  greatly  increased  as  regards  their  employees. 
If  a  person  is  injured  in  the  discharge  of  his  legitimate 
duties,  and  not  through  his  own  carelessness,  the  com- 
pany should  be  held  for  a  reasonable  compensation. 
No  corporation  should  have  the  privilege  of  placing 
the  lives  of  its  employees  in  jeopardy,  and  then  throw- 
ing them  upon  the  public  if  they  suffer  injury.  No 
corporation  in  which  the  public  have  a  direct  interest 
should  be  allowed  to  deprive  the  people  of  its  promised 
service  merely  for  the  sake  of  getting  the  better  of  its 
employees  in  a  quarrel.  If  the  managers  of  such  cor- 
porations can  not  conduct  them  without  resorting  to 
long-continued  strikes  and  lock-outs,  their  charters 
should  be  annulled,  and  some  other  way  discovered  for 
carr>4ng  on  the  business.  The  State  should  never 
proceed  on  the  theory  that  the  people  exist  for  the 
good  of  corporations,  but  that  corporations  exist  for  the 
good  of  the  people.  No  board  of  directors  should  be 
allowed  to  repudiate  the  doings  of  their  employees  or  to 
refuse  to  control  the  action  of  their  subordinates,  as  has 
often  been  done  by  the  managers  of  our  great  railroad 
companies.  The  severest  penalty  should  be  inflicted 
for  such  conduct. 

It  must  be  acknowledged  by  all  that  our  present  laws 
with  reference  to  corporations  are  either  antiquated  or 


8o  The  Sphere  of  the  State. 


wholly  inadequate  for  the  ])urpose.  The  problems  the 
subject  presents  are  by  no  means  easy  of  solution. 
There  is  much  truth  in  the  statement  of  another  that 
"the  development  of  these  ponderous  artificial  beings 
(corporations)  has  exceeded  the  development  of  their 
nervous  systems,  and  the  monsters  can  only  sprawl  and 
plunge  instead  of  going  forward  to  a  definite  end." 
Yet  we  firmly  believe  that  if  every  State  should  pursue 
the  course  outlined  above,  genuine  progress  would  at 
once  be  made  toward  putting  these  ' '  monsters ' '  on 
their  feet,  and  helping  them  to  act  in  a  more  sedate 
and  rational  manner.  One  commonwealth,  at  least, 
has  recently  come  to  itself  on  this  matter.  In  Massa- 
chusetts an  annual  report  to  a  specified  public  officer 
must  now  be  made  and  sworn  to  by  every  business  cor- 
poration in  the  commonwealth.  I^iterary,  benevolent, 
charitable,  and  scientific  institutions  have  made  annual 
reports  to  the  government  of  their  property,  income, 
and  expenditure  since  1882.  Even  the  exact  form  of 
keeping  accounts  has  been  prescribed  by  the  govern- 
ment in  many  cases.  For  the  general  law  not  only 
requires  that  the  annual  certificate  of  the  corporation 
be  "signed  and  sworn  to  by  its  president,  treasurer, 
and  at  least  a  majority  of  its  directors,"  but  also  that  it 
be  "in  such  form  and  with  such  details  as  the  commis- 
sioner of  corporations  shall  require  or  approve." 

Inasmuch  as  corporations  are  creatures  of  the  State, 
and  require  large  expenditures  on  the  part  of  the 
government  to  enforce  and  defend  their  privileges  and 
powers,  the  taxation  of  corporations  to  meet  these  ex- 
penditures is  most  rational  and  just.  The  basis  of  this 
taxation  should  be  their  annual  net  profits.  Every 
artificial  person,  like  every  real  person,  should  be 
required  to  contribute  to  the  support  of  the  government 


Corporations  and  Their  Place  in  the  State.     8 1 

according  to  his  ability.  If  a  corporation  has  no  profits, 
whatever  the  par  value  of  its  stock  may  be,  it  has  no 
ability  to  pay  taxes.  If  it  has  a  large  percentage  of 
profit  on  its  invested  capital,  it  has  a  large  ability. 
Charitable,  educational,  and  religious  corporations  will 
not  ordinarily  have  profits,  and  therefore  will  usually 
be  exempted  from  taxation.  Publicity  of  accounts  will 
make  it  easy  to  estimate  and  collect  this  tax.  It 
should  be  one  of  the  most  important  sources  of  revenue 
to  the  State. 

Perhaps  no  subject  in  recent  years  has  attracted  more 
attention  in  business  circles  than  the  matter  of  trusts. 
Another  name  for  them  is  consolidations  or  syndicates. 
A  trust  is  a  device  for  so  uniting  corporations  as  to 
manage  them  by  a  single  board  for  their  common 
benefit.  The  individual  corporations  making  up  the 
trust  preserve  their  own  organization,  and  transact 
their  own  business.  Trusts  are  confined  to  no  country, 
and  to  no  fiscal  policy.  The  recent  copper-trust  was 
French,  with  headquarters  at  Paris.  The  salt- trust 
is  English,  with  headquarters  at  lyondon.  The  wire- 
rod-trust  is  German.  The  steel-trust  was  international. 
It  is  a  great  error,  both  legally  and  commercially,  to 
regard  trusts  as  anything  else  than  a  distinctly  modern 
product.  "It  is  a  mischievous  confusion  of  ideas, ' ' 
says  an  able  writer  on  trusts  in  the  Formn  for  Sep- 
tember, 1888,  "to  regard  as  trusts  such  things  as  the 
mediaeval  guilds,  the  famous  Copper  Syndicate,  Conrad 
Roth's  sixteenth-century  attempt  to  corner  pepper  at 
Augsburg,  the  Dutch  East  India  Company,  and  the 
numerous  middle-age  monopolies  of  which  they  are  in 
some  sort  types.  The  trust  is  the  nineteenth-century 
offspring  of  over-production,  small  profits,  competition 
rampant,  and  labor  organizations."     The  relation  of 


82  The  Sphere  of  the  State. 


the  vState  to  trusts,  therefore,  should  not  be  determined 
by  reference  to  ancient  statutes.  The  decisions  of  the 
courts  three  hundred  years  ago,  or  even  fifty,  have  no 
bearing  on  this  subject.  Nor  should  Lord  Coke's 
opinions  about  "conspiracies"  be  regarded  as  settling 
their  legal  status.  Trusts  bear  essentially  the  same 
relation  to  corporations  that  corporations  bear  to  in- 
dividuals of  which  they  are  composed.  Regarded  as 
corporations  of  corporations,  they  have  a  just  right  to 
existence,  and  may  become  a  great  means  of  good. 

The  growth  and  development  of  the  modern  trust  is 
as  natural  an  evolution  in  business  as  was  that  of  cor- 
porations. The  arguments  now  used  against  their 
formation  are  precisely  those  employed  fifty  years  ago 
against  the  formation  of  corporations.  Properly  man- 
aged, they  are  fitted  to  do  for  the  great  business  enter- 
prises of  the  world  what  railroad  consolidation  is  doing 
for  transportation,  what  the  Postal  Union  is  doing  for 
the  intercourse  of  nations,  what  international  copyright 
is  doing  for  literature,  what  a  consolidation  of  many 
separate  and  independent  powers  has  done  for  Germany 
and  the  United  States. 

It  is  sometimes  argued  that  the  State  should  destroy 
trusts,  because,  by  suppressing  competition  and  check- 
ing production,  they  tend  to  confer  upon  their  man- 
agers monopoly  powers.  But  is  the  suppression  of 
competition  necessarily  an  evil?  There  are  many 
competent  authorities  who  do  not  hesitate  to  affirm 
"that  competition,  as  now  conducted,  costs  the  public 
a  million  of  dollars,  where  monopoly,  such  as  is  pos- 
sible under  modern  conditions,  can  extort  a  penny." 
It  is  generally  true  that  the  poor,  who  are  the  ones 
most  injured  by  unrestricted  competition,  are  the  very 
persons  who  most  loudly  denounce  trusts.     But  if 


Corporations  and  Their  Place  in  the  State.     83 

trusts  tend  to  check  the  wastefulness  of  competition, 
it  is  a  very  strong  point  in  their  favor.  Many  wise 
men  of  to-day  will  heartily  agree  with  Judge  Gray,  of 
the  Court  of  Appeals  of  New  York,  who  said  in  a 
recent  decision  :  "  I  do  not  think  that  competition  is 
invariably  a  public  benefaction  ;  for  it  may  be  carried 
to  such  a  degree  as  to  become  a  general  evil. ' '  If 
trusts  are  treated  as  corporations,  and  subjected  to  the 
requirements  of  all  other  corporations,  as  set  forth 
above,  their  formation  and  conduct  will  be  fully  known 
to  the  public.  If  the  profits  of  a  trust  become  exces- 
sive, outside  capital  will  come  in,  and  the  trust  will 
disintegrate.  Every  trust  must  not  only  meet  the 
competition  that  now  is,  but  must  forestall  that  which 
may  be.  It  must  also  have  regard  for  other  products 
than  the  one  it  is  formed  to  control.  If  a  wh:at 
trust,  for  an  example,  makes  the  price  of  wheat  too 
high,  people  will  stop  buying  wheat,  and  will  use 
other  grains  in  its  stead.  Trusts  are  here,  and  here  to 
stay,  at  least  for  the  present.  If  they  prove  of  any 
'Service  as  corporations  of  corporations,  let  them  abide. 
A  general  consensus  of  enlightened  moral  sentiment 
does  not  condemn  giving  them  a  fair  trial.  I^et  ex- 
perience be  the  final  arbiter  of  their  usefulness. 

As  matters  now  are,  all  the  machinery  of  the  govern- 
ment stands  ready  to  protect  the  interests  of  incorpo- 
rated capital,  and  compel  it  to  discharge  its  obligations  ; 
but  organized  labor  has  no  legal  standing  in  our  courts. 
There  is  no  way  for  it  to  act  except  as  a  law  to  itself, 
and  no  way  for  the  government  to  restrain  it  unless  it 
commits  some  criminal  act.  A  laborer  should  have 
the  same  legal  position  as  a  capitalist,  the  service  of  his 
person  being  the  basis  of  his  contract.  The  govern- 
ment should  imprison  labor  just  as  it  confiscates  capital 


84  The  Sphere  of  the  State. 

whenever  it  voluntarily  breaks  its  contract,  and  does 
not  offer  a  money  equivalent.  All  associations  or 
federations  of  labor  should  be  required  to  reorganize 
as  corporations,  or  to  disband  altogether.  We  have 
arrived  at  a  time  in  history  "when,  in  the  evolution 
of  commercial  economy,  an  entirely  new  factor  is  to 
come  into  affairs  ;  when  organized  labor  is  to  take  its 
place  in  law  and  the  courts  by  the  side  of,  and  be  the 
equal  of,  capital,  with  like  legal  recognition,  ad- 
vantages, encouragement,  and  with  none  the  less  of 
its  responsibilities  and  liabilities,  willing  to  imperil  the 
liberty  of  its  person  as  the  guarantee  for  its  good  con- 
duct." Organizations  of  capital  and  organizations  of 
labor  are  both  artificial  persons,  and  the  exact  counter- 
part of  trusts  in  the  business  world  are  trade  unions. 
These  and  similar  combinations  of  labor  bear  the  same 
relation  to  the  workingman  as  trusts  do  to  the  capi- 
talist. They  are  both  organized  for  a  similar  purpose, 
and  carry  on  their  operations  by  similar  means.  The 
existence  of  the  one  is  just  as  legitimate  as  the  ex- 
istence of  the  other,  and  the  privileges  and  powers 
granted  to  the  one  should  be  just  as  freely  bestowed 
upon  the  other.  Organizations  of  capital  and  organi- 
zations of  labor  are  both  artificial,  and  should  be  so 
regarded  by  the  State.  In  this  way  only  can  the  State 
keep  them  within  proper  limits,  and  cause  them  to 
contribute  to  the  progress  and  well-being  of  the  people. 
It  is  indispensable  to  the  success  of  the  method  of 
dealing  with  corporations  outlined  above  that  every 
State  should  have  a  commissioner  of  corporations. 
Such  a  commissioner  of  corporations  was  established 
in  Massachusetts  in  1870.  No  incorporation  is  com- 
plete in  that  commonwealth  until  this  ofl&cei  is  satis- 
fied that  the  law  has  been  complied  with ;   and  no 


Corporations  and  Their  Place  in  the  State.     85 

corporation  organized  under  general  or  special  law  can 
begin  the  transaction  of  business  until  the  whole 
amount  of  its  capital  stock  has  been  paid  in,  in  stock 
or  its  equivalent,  and  a  certificate  of  the  fact  filed  with 
the  secretary  of  the  commonwealth.  Experience  abun- 
dantly testifies  that  the  let-alone  policy  of  dealing  with 
corporations,  now  so  common,  is  most  harmful  to  the 
public  welfare,  and  ought  at  once  to  be  abandoned 
throughout  the  entire  country.  As  Commissioner 
Tarbox  in  his  report  for  18S6  expresses  it  :  "  The  plea 
that  the  corporations,  if  left  to  themselves,  will  faith- 
fully perform  their  trusts  and  do  full  justice  to  their 
policy-holders,  and  that  therefore  there  is  no  need  for 
legal  protection  to  either,  is  not  sustained  by  reason  or 
facts." 

Of  the  success  of  Massachusetts  in  her  attempt  to 
regulate  the  conduct  of  corporations  there  can  be  no 
reasonable  doubt.  The  railroad  commissioners  of  that 
commonwealth  in  a  recent  report  (1886)  tell  us  that 
"the  books,  papers,  and  accounts  of  the  railroad 
corporations  are  as  open  to  public  scrutiny  as  those  of 
the  State  or  city  governments  ;  and  yet  not  a  single 
one  of  the  evils  so  frantically  predicted  has  ensued  ! ' ' 
Similar  statements  to  the  same  effect  from  the  reports 
of  other  commissioners  might  be  quoted  almost  with- 
out limit.  Mr.  Holmes  in  an  able  paper  on  the  subject 
in  the  Political  Sciejice  Quarterly  for  September,  1890, 
declares  it  to  be  the  "  well  established  policy  "  of  the 
government.  All  reasonable  public  concern  for  the 
management  of  corporations,  he  does  not  hesitate  to 
affirm,  has  been  disposed  of  in  that  commonwealth  by 
this  system. 

These  Massachusetts  commissioners,  being  special 
students  of  corporations,  are,  moreover,  expert  advisers 


S6  The  Sphere  of  the  State. 

to  the  legislature  on  all  questions  coming  within  their 
jurisdiction.  For  the  commonwealth  acts  on  the 
theory  that  it  is  unreasonable  to  expect  that  the  aver- 
age lawmaker  will  take  time,  even  if  he  has  the  abilit5% 
adequately  to  inform  himself  on  such  matters.  All 
complaints  from  every  quarter  concerning  the  violation 
of  these  regulations  regarding  corporations,  are  pre- 
sented to  these  commissioners.  In  the  civil  courts  jus- 
tice is  meted  out  only  to  those  who  can  pay  for  it.  For 
there  the  rich  and  the  poor  are  not  on  an  equal  footing. 
But  before  this  commission  the  humblest  person  in  the 
commonwealth  is  permitted  to  state  his  grievance,  as- 
sured that  redress,  if  he  deserves  it,  will  be  obtained 
for  him  without  unnecessary  delays  and  without  cost. 

It  is  difficult,  if  not  impossible,  to  overestimate  the 
importance  of  the  proper  regulation  of  corporations  by 
the  strong  arm  of  the  State.  For  all  classes  and  con- 
ditions of  men  come  far  more  constantly  and  vitally 
than  they  think  within  their  sphere  of  influence.  We 
can  hardly  get  a  quart  of  oil  to  light  our  dwellings 
without  submitting  to  the  terms  of  a  corporation.  The 
bread  we  eat  is  usually  brought  to  our  doors  by  a  cor- 
poration, and  the  rates  we  pay  for  the  water  we  drink 
are  very  likely  determined  by  a  corporation.  The 
church  we  worship  in  is  owned  by  a  corporation,  and 
the  grave  in  which  we  shall  be  buried  when  we  die  will 
probabl}^  be  bought  of  a  corporation. 

If  the  people  have  a  right  to  control  anything,  they 
certainly  have  the  right  to  control  their  own  creations. 
If  the  government  they  choose  to  represent  them  has 
any  duty  to  perform  for  the  public  good,  it  certainly 
has  the  duty  of  regulating  the  conduct  of  these  arti- 
ficial beings.  For  corporations  have  no  souls  and 
therefore  no  consciences.     They  are  by  nature  freed 


Corporations  and  Their  Place  in  the  State.     87 

from  the  restraints  that  hold  in  check  the  evil  impulses 
of  ordinary'  individuals.  They  are  tempted  to  perform 
and  are  constantly  performing  acts  that  an  individual 
would  scorn  to  undertake.  They  can  have  real  indi- 
viduals sent  to  prison  for  interfering,  with  their  pre- 
rogati\'es,  but  they  themselves  can  escape  all  such 
punishment.  They  can  oppress  without  them- 
selves being  liable  to  suffer,  and  can  tyrannize  without 
being  themselves  exposed  to  any  of  the  perils  of  a  des- 
pot. Unchecked  by  legislation,  these  artificial  persons 
may  plunder  and  devour  the  substance  of  the  people 
almost  without  restraint  and  without  limit.  But  regu- 
lated and  controlled  by  the  State  in  accordance  with 
the  principles  set  forth  above,  they  ought  to  become  and 
will  become  one  of  the  greatest  agencies  of  this  or  any 
other  time  for  spreading  abroad  the  blessings  of  modern 
skill  and  industry  over  the  whole  earth.  Everj^  class 
and  condition  of  mankind  will  feel  their  beneficent 
influence. 


CHAPTER  Vt. 

TRANSPORTATION  IN  ITS  REIvATlON  TO  THE  STATE. 

In  1844  the  minimum  cost  of  sending  a  letter  from 
New  York  to  Buffalo,  or  any  similar  distance  in  the 
United  States,  was  twenty-five  cents.  Now  one  may 
send  a  message  from  any  hamlet  in  Maine  to  the  ex- 
treme limits  of  Alaska,  a  distance  of  over  5,000  miles, 
for  a  single  penny.  When  Gladstone  first  entered 
public  life,  the  ordinary  postage  on  a  letter  from 
lyondon  to  New  York  was  fifty-eight  cents.  Now 
five  cents  will  carry  the  same  document  from  Sacra- 
mento to  St.  Petersburg  in  much  less  time  and  with 
far  greater  safety.  It  is  idle  to  attempt  to  estimate 
the  economic  effects  of  our  present  postal  service  upon 
all  departments  of  modern  life.  As  Arthur  T.  Hadley 
expresses  it  in  an  able  paper  on  the  History  of 
the  Post  Office:  "Our  whole  economic,  social,  and 
political  system  has  become  so  dependent  upon  free 
and  secure  postal  communication,  that  the  attempt 
to  measure  its  specific  effects  can  be  little  else  than  a 
waste  of  words. 

The  changes  that  have  taken  place  in  the  transpor- 
tation of  persons  and  commodities  within  the  last  gen- 
eration are  equally  striking.  Fifty  years  ago  it  took 
nearly  three  weeks  to  go  from  New  York  to  Chicago, 
and  cost  upwards  of  one  hundred  dollars.     Now  the 


Transportation  in  its  Relation  to  the  State.     89 

ordinary  fare  is  about  twenty  dollars  and  the  time  less 
than  thirty  hours.  The  freight  rates  between  these  two 
cities  in  1850  were  several  times  as  high  as  at  present. 

The  success  or  failure  of  almost  every  enterprise  is 
to-day  dependent  upon  the  cost  of  transportation.  The 
location  of  cities  and  the  development  of  business  are 
mainly  determined  by  the  railroad  and  steamship. 
The  determination  of  Chicago  early  in  her  history  to 
have  every  railroad  in  the  region  pass  through  her 
limits,  is  one  of  the  chief  reasons  why  she  has  so  easily 
and  so  quickly  eclipsed  all  her  rivals  in  population  and 
wealth,  and  become  the  second  city  on  the  continent. 
Rapid  and  cheap  transportation  has  more  than  com- 
pensated for  her  great  natural  disadvantages,  as  com- 
pared with  some  of  her  neighbors.  On  the  other  hand, 
large  and  prosperous  cities  have  gone  into  premature 
deca^^  through  a  slight  change  in  the  cost  of  transporta- 
tion or  in  the  method  of  carrying  on  the  traffic.  Whole 
districts  of  the  country  could  easily  be  depopulated  by 
materially  raising  or  lowering  the  transportation  rates. 
What  would  become  of  the  wheat  fields  of  Dakota  if 
the  rates  to  lyiverpool  should  be  doubled  ?  How  long 
wotdd  some  of  the  iron  and  coal  mines  of  Pennsylvania 
continue  to  be  operated,  if  governmental  protection 
should  be  removed  and  the  rates  from  Europe  be 
reduced  one  half? 

In  every  State  the  activities  of  men  may  be  divided 
into  two  classes — competitive  and  non-competitive. 
The  production  of  articles  of  human  necessity  from  the 
soil,  ordinary  trade,  and  the  communication  of  knowl- 
edge belong  by  nature  to  the  former  class  ;  while  those 
activities  that  spring  from  transportation  naturally  be- 
long to  the  latter.  Those  who  control  these  non- 
competitive   activities    control     the    distribution    of 


90  The  Sphere  of  the  State. 


commodities,  and  thus  determine  their  value  and  use. 
Generally  speaking,  after  the  avenues  of  intercom- 
munication have  once  been  established  they  can  not 
y successfully  be  duplicated.  Hither  there  is  no  need  of 
doing  it,  or  the  injury  that  would  come  to  other  proper- 
ties would  not  justify  the  State  in  giving  the  permission 
to  do  so.  The  way  to  obtain  control  of  these  means 
of  transportation  is  something  quite  distinct  from 
creating  them  to  begin  with,  or  enlarging  and  perfect- 
ing them  after  they  have  been  once  brought  into  being. 
The  great  instrument  for  securing  this  control  in  our 
day  is  the  stock  exchange,  where  success  generally 
depends  not  upon  real  values,  but  upon  a  person's 
ability  to  so  manipulate  stocks  as  to  have  the  fluctua- 
tions of  the  market  in  his  favor.  As  a  writer  in  the 
North  Atnerican  Review  ^nts  \\.  :  "With  the  power  of 
great  capital,  with  facilities  for  '  rigging  '  the  market 
in  its  various  forms  by  lying  reports,  by  withheld  re- 
ports, by  making  money  plentiful  or  scarce  in  the  loan 
market,  he  [one]  can  produce  his  own  fluctuations,  and 
get  the  benefit  of  them."  Many  of  the  choicest  trans- 
portation properties  of  the  country  have  already  been 
thus  captured ;  and  the  wealth  and  political  influence 
that  their  possessors  have  acquired  by  the  process  have 
beyond  question  seriously  impaired  the  suffrage  powers 
of  the  people,  clogged  the  wheels  of  free  legislation, 
and  thrown  suspicion  upon  the  impartiality  of  the 
courts. 

Apart  from  the  post-ofl&ce  almost  every  system  of 
transportation  in  this  country  has  been  left  to  take 
care  of  itself.  With  our  almost  boundless  domain  we 
could  afford  for  a  while  to  bid  defiance  to  the  econom- 
ics. But  the  time  has  come  for  us  to  arouse  our- 
selves to  the  fact  that  no  new  laws  of  humanity  have 


Transportatio7i  in  its  Relation  to  the  'State.     9 1 

been  made  for  our  exclusive  benefit.  We  can  not  with 
safety  longer  ignore  the  experience  of  our  fellow-mor- 
tals in  other  lands  on  this  subject.  For  the  problems 
that  now  confront  us  are  confessedly  among  the  most 
serious  and  difficult  of  our  time,  and  their  proper  solu- 
tion will  certainly  tax  to  the  utmost  all  our  powers. 
But  the  great  question  of  the  futirre  in  regard  to 
transportation  is  not  alone  as  to  what  men  and  agencies 
shall  conduct  it,  but  as  to  whether  it  shall  be  so  con- 
ducted as  to  continue  to  contribute  to  the  building  up 
of  enormous  private  fortunes,  or  with  supreme  and 
ultimate  regard  for  the  general  prosperity  of  the  people 
and  the  highest  good  of  all. 

The  only  power  that  has  absolute  control  of  all  the 
means  of  transportation  within  the  State  is  the  State 
itself.  As  the  organic  brotherhood  of  man  it  is  sover- 
eign over  all  acts  and  persons.  It  alone  has  the  right 
to  determine  what  avenues  of  intercommunication  shall 
exist  within  its  borders  and  how  they  shall  be  operated 
and  controlled.  It  alone  is  ultimately  responsible  for 
making  these  means  of  intercourse  the  best  the  given 
conditions  will  allow,  and  for  so  directing  their  use 
that  they  shall  not  advance  the  interests  of  any  one 
class  alone,  but  the  interests  of  all.  How  it  can  best 
do  this  the  people  of  each  generation  must  determine. 
The  answer  given  to  the  question  to-day  is  not  of 
necessity  the  answer  of  to-morrow.  It  maj^  allow 
private  enterprise  to  take  charge  of  the  matter  at  one 
time  and  adopt  direct  governmental  control  at  another. 
In  short,  it  will  ever  hold  itself  open  to  a  change  of 
policy  whenever  the  economic  conditions  of  the  time 
may  warrant. 

As  to  what  the  relation  of  the  State  to  the  post-office 
in  our  day  ought  to  be,  there  seems  to  be  but  one 


92  The  Sphere  of  the  State. 


opinion.     Direct  governmental  control  has  for  many 
years  been  the  policy  of  all  the  civilized  States  of  the 
world,  and  the  tendency  of  the  present  is  decidedly  in 
the  direction  of  enlarging  its  sphere  of  action  rather 
than  curtailing  it.     The  only  questions  we  need  seri- 
ously to  discuss  at  present  regarding   the  post-ofiice 
are :  what  should  be  the  financial  aims  of  the  govern- 
ment in  its  management,  and  what  means  should  it 
adopt  for  realizing  those  aims  ?    The  government  might 
manage  the  post-office  so  as  to  accomplish  any  one  of 
four  ends  :  to  raise  a  revenue,  to  make  business  profits, 
to  pay  expenses,  to  further  the  general  interests  of  the 
public.     The  first  of  these  ends  may  be  at  once  elimi- 
nated  from  consideration.     For  no  civilized  State  of 
to-day  would   think   of  raising   its  taxes  by   such   a 
method.     It  would  be  far  more  reasonable  to  tax  the 
people  for  the  support  of  the  post-oflBce  than  to  tax  the 
post-ofiice  for  the  support  of  the  people.     One  of  the 
primary  objects  of  the  modern  State  is  to  educate  the 
people  by  every  means  in  its  power,  and  to  make  the 
distribution  of  intelligence  as  nearly  as  possible  open  to 
all.     We  can  therefore  eliminate  the  second  of  these 
ends.     The  true  end  in  the  management  of  the  post- 
office,  as  in  every  other  matter  of  the  State,  is  the  fur- 
therance of  the  best  interests  of  the  people.    This  would 
generally  be  accomplished  by  making  the  financial  aim 
of  the  post-office  the  payment  of  expenses,  but  there  are 
some  important  instances  where  it  could  not  justly  be 
made  the  chief  end.     "In  countries  like  the  United 
States  and  Russia,"  says  Professor  Hadley  in  the  paper 
referred  to  above,  "there  are  strong  social  and  admin- 
istrative  reasons    for    establishing    long    routes  over 
sparsely  populated  districts.     These   involve   a  large 
increase  in  expense,  with  no  corresponding  increase  in 


Transportation  i7i  its  Relation  to  the  State.     93 

revenue,  whatever  rate  of  postage  is  charged  upon 
them.  They  have  often  caused  a  deficit  in  Russia,  and 
almost  always  in  the  United  States. ' ' 

The  postal  service  of  the  United  States,  while  notice- 
ably defective  in  some  respects,  lacks  but  little  of 
coming  as  near  to  the  realization  of  the  true  aim  of 
such  a  service  as  any  in  existence.  No  department  of 
the  government  is  more  efficiently  administered,  or 
more  truly  contributes  to  the  advantage  of  the  public. 
Forty  years  ago  the  annual  cost  of  the  entire  service 
was  a  little  over  five  millions,  or  about  equal  to  the 
present  business  of  the  New  York  City  office.  When 
Benjamin  Franklin  was  Postmaster- General  tradition 
has  it  that  he  carried  the  entire  general  archives  in  his 
breast-pocket.  Now  there  are  sixty  thousand  post- 
masters, one  hundred  and  seventy  thousand  persons 
engaged  in  the  service,  and  the  annual  cost  of  manage- 
ment is  upwards  of  sixty-six  million  dollars.  Taking 
into  due  consideration  its  enormously  rapid  growth  and 
the  inexperience  of  many  of  its  officials,  its  freedom 
from  corruption  and  the  general  efficiency  of  its  service 
make  it  worthy  in  almost  every  particular  of  the  greatest 
commendation. 

But  legislation  in  support  of  this  servnce  has  not  at  all 
kept  pace  with  its  growth.  Without  the  railroad  our 
entire  domestic  postal  system  would  be  valueless,  but 
as  matters  now  are  the  railroad  has  the  system  com- 
pletely at  its  own  mercy.  Ex-Postmaster-General 
Dickinson  in  the  North  America7i  Review  for  October, 
1889,  concludes  a  review  of  the  legal  status  of  the  post- 
office  with  the  statement :  "  In  the  present  condition  of 
legislation,  then,  any  company  now  carrying  the  mails 
may  refuse  to  continue  its  contract  and  may  stop  the  mails 
on  any  great  trunk  line  with  impunity."     All  a  Post- 


94  The  Sphere  of  the  State. 

master- General  of  the  United  States  can  do  if  a  railroad 
company  refuses  to  carry  the  mail  at  a  reasonable  com- 
pensation is  to  contract  for  carrying  the  "  letter  mail 
(section  3999  of  the  Revised  Statutes)  by  horse-express 
or  otherwise,  at  the  greatest  speed  that  can  reasonably 
be  obtained,  and  for  carrying  the  other  mail  in  wagons, 
or  otherwise,  at  a  slower  rate  of  speed."  In  the  eyes 
of  any  one  but  an  American,  the  abject  dependence  of  so 
great  a  public  institution  as  the  post-office  upon  the 
personal  greed  of  every  railroad  manager  in  the  country, 
is  not  only  lamentable  but  ridiculous. 

The  transmission  of  money  through  the  post-office 
in  recent  years  aggregates  vast  amounts.  In  1888  the 
total  disbursements  and  receipts  reached  nearly  two 
hundred  and  sixty-five  million  dollars.  The  present 
money-order  limit  is  $100.  It  is  the  opinion  of  many 
experts  on  this  subject  that  we  should  have  no  limit, 
and  that  the  post-office  will  not  be  made  what  it  ought 
to  be  until  we  have  established  postal  savings  banks. 
The  people,  they  argue,  should  have  for  their  money 
all  the  security  they  have  for  their  correspondence  and 
at  its  lowest  cost. 

One  of  the  chief  needs  of  the  post-office  to-day,  ac- 
cording to  ex-Postmaster-General  James,  is  the  appli- 
cation to  the  department  of  "  business  principles." 
"  We  can  expect,"  he  says  in  the  Forum  for  October, 
1888,  "  no  great  or  lasting  reform  in  the  postal  service 
until  that  branch  of  the  government  is  absolutely 
divorced  from  politics  and  the  work  of  the  office  is  run 
on  business  principles, — the  best,  in  fact  the  only,  way 
to  put  a  stop  to  this  (the  present)  condition  of  affairs, 
is  to  cut  off  the  supply  of  '  political  pap  '  by  Act  of 
Congress,  making  places  in  the  post-office  permanent 
during  good  behavior. ' ' 


Transportation  in  its  Relation  to  the  State.     95 

Why  the  State  should  empower  the  government  to 
take  control  of  the  transmission  of  letters,  periodicals, 
and  mone}-,  and  not  of  telegrams,  it  is  wellnigh  impos- 
sible to  conceive.  In  every  civilized  land  except  in  the 
United  States  the  telegraph  has  long  since  passed  under 
governmental  management,  and  the  expediency  of  the 
arrangement  is  unquestioned.  In  England  as  soon 
as  the  government  discovered  the  importance  of  the 
telegraph  to  the  welfare  of  the  nation,  it  bought  out 
every  existing  line,  although  at  great  expense,  and 
assumed  absolute  control  of  the  business.  Considered 
simply  as  a  business  transaction,  the  bargain  has  not 
been  a  bad  one  for  the  government,  notwithstanding 
the  fact  that  the  number  of  offices  has  been  trebled  and 
the  average  cost  of  a  message  reduced  to  sixteen  cents. 
"It  is  amusing, ' '  says  Mr.  Preece  in  a  paper  read  be- 
fore the  Society  of  Arts,  in  London,  May,  1887,  "  after 
this  length  of  time,  to  read  the  arguments  that  were  ad- 
vanced against  the  absorption  of  the  telegraph  by  the 
State.  Every  reason  has  been  proved  wrong,  every 
prophecy  has  remained  unfulfilled.  I  can  say  this  with 
good  grace,  for  I  was  one  of  the  prophets." 

When  our  Continental  Congress  first  assumed  control 
of  the  postal  system  of  the  country,  it  declared  its  func- 
tion to  be  "the  communicating  intelligence  with  regu- 
larity and  despatch  from  one  part  to  another  of  these 
United  States."  Yet  the  one  agency  that  easily  out- 
strips all  others  in  performing  this  function  it  still  con- 
tinues wholly  to  ignore,  leaving  the  most  important 
and  powerful  means  of  communicating  intelligence  ' '  to 
a  gigantic  monopoly  virtually  in  the  hands  of  one  corpo- 
ration, if  not  of  one  man,  who  exacts  millions  of  dollars 
from  the  people  in  excessive  and  unreasonable  charges 
every  year.     We  get  some  conception  of  this  exaction 


96  The  Sphere  of  the  State. 


when  we  reflect  that  from  1866,  to  1883  inclusive,  the 
shareholders  of  the  Western  Union  Company  received 
$34,000,000  in  cash  dividends  besides  the  $26,000,000 
that  were  paid  to  them  as  dividends  on  their  stock." 

When  our  national  government  is  urged  to  assume 
direct  control  of  the  telegraph  it  is  not  urged  to  do 
anj^thing  new.  The  first  line  of  telegraph  erected  in 
this  country  was  erected  by  a  Congressional  appropria- 
tion of  $30,000,  "to  test  the  expediency  of  the  tele- 
graph projected  by  Professor  Morse,"  and  was  operated 
by  the  Postmaster- General  for  three  years  as  a  branch 
of  the  postal  service.  It  is  simply  urged  to  return  to 
the  unfortunately  abandoned  policy  of  1844,  to  do  what 
the  government  of  every  other  civilized  land  is  doing  to 
make  the  transmission  of  knowledge  among  the  people 
as  speedy  and  inexpensive  as  is  within  its  power. 

Furthermore,  the  telegraph  in  all  civilized  lands  has 
now  become  an  indispensable  means  of  carrying  on  the 
government.  It  is  the  chief  agency  by  which  the  cen- 
tral government  communicates  with  all  its  separate 
parts.  By  it  and  by  it  alone  can  the  government  in- 
stantly acquaint  itself  with  the  course  of  events  in 
every  part  of  its  territory  and  at  once  exert  its  author- 
ity in  quelling  riots  and  enforcing  obedience  to  its  laws. 
Without  its  aid  the  officers  of  the  government  would 
often  be  wholly  impotent  to  detect  the  whereabouts  of 
criminals  and  check  their  flight  to  quarters  of  the  earth 
wholly  beyond  their  jurisdiction.  No  one  can  fail  to 
see  that  where  the  government  is  left  dependent  upon 
any  outside  agency  for  its  information,  it  may  easily  be 
kept  in  ignorance  of  the  actual  facts  and  may  often  un- 
wittingly be  led  to  use  its  power  for  the  injury  of  its 
subjects  rather  than  for  their  good.  Every  govern- 
ment, therefore,  in  this  modern  era,  should  have  direct 


Transportation  in  its  Relation  to  the  State.     97 

control  of  a  system  of  telegraph  that  nothing  may  pre- 
vent it  from  ministering  to  the  welfare  of  all  the  people 
in  the  most  thorough  and  efficient  manner. 

The  considerations  we  have  adduced  in  favor  of 
governmental  control  of  the  post-office  and  telegraph 
apply  with  almost  equal  weight  to  any  agency  for  the 
transmission  of  intelligence  among  the  people  that 
comes  to  be  indispensable  to  their  commercial  and 
social  life.  The  telephone  is  fast  becoming  such  an 
agency.  The  total  number  of  receiving  telephones 
in  use  in  the  United  States,  according  to  the  census 
of  1880,  was  54,319.  In  1 89 1  the  American  Bell  Tele- 
phone Company  had  483,790  instruments  under  rental, 
and  paid  its  stockholders  over  a  million  and  a  quarter 
in  cash  dividends.  Together  with  its  subsidiary  com- 
panies it  to-day  represents  a  capital  of  $80,000,000. 
The  best  way,  if  not  the  only  way,  to  bring  this  enor- 
mous power  into  subserviency  to  the  people  at  a  reason- 
able cost  is  by  direct  governmental  control.  The 
franchises  it  receives  from  the  people  in  their  organic 
capacity  as  a  State  ought  to  be  used  for  the  good  of 
the  people.  The  history  of  the  Western  Union  Com- 
pany gives  us  no  reason  to  expect  they  will  be  so  used 
in  the  case  of  the  telephone  any  more  than  they  have 
been  in  similar  instances  in  the  past.  On  the  con- 
trary we  ought  to  expect  that  the  rates  will  continue  to 
be  enormously  out  of  proportion  to  their  cost ;  that  the 
monopoly  power  already  acquired  will  be  used  to  swell 
the  coffers  of  its  holders,  regardless  of  the  extent 
to  which  the  people  suffer.  Already  nearly  every 
device  known  to  the  legal  profession  has  been  re- 
sorted to  to  prevent  a  decision  by  the  courts  of  the 
original  ownership  of  the  telephone  patent.  For 
the  American    Bell    Telephone    Company    long    ago 


98  The  Sphere  of  the  State. 


bought  out  all  the  actual  contestants,  and  the  time  of 
the  expiration  of  its  monopoly  of  the  telephone  business 
is  legally  seventeen  years  from  the  date  of  this  decision. 
The  expiration  of  this  patent  ought  to  come  in  1894,  but 
actually  the  people  will  be  plundered  by  its  continuance 
till  at  least  1908. 

The  telephone  has  already  become  indispensable  to 
the  efficient  administration  of  the  government.  In  all 
the  great  centres  every  moment  orders  are  passing  over 
its  wires  whose  failure  to  reach  their  destination  might 
easily  throw  the  workings  of  the  government  into  con- 
fusion and  greatly  jeopardize  the  security  of  the  people, 
if  not  their  property  and  lives.  On  what  principles  of 
common  prudence  even  can  the  State  allow  the  govern- 
ment to  remain  in  complete  dependence  on  some  irre- 
sponsible outside  power  in  a  matter  so  essential  to  the 
domestic  and  commercial  welfare  of  its  people  and  the 
efficient  execution  of  its  laws  ? 

When  we  come  to  the  consideration  of  the  transpor- 
tation of  persons  and  commodities  the  same  principles 
apply  as  in  the  transmission  of  intelligence. 

Every  watercourse,  whether  natural  or  artificial,  in 
every  nation  is  under  the  supreme  control  of  that 
nation.  The  right  of  private  navigation  is  a  derived 
right  and  may  at  any  time  be  taken  away  if  the  interest 
of  the  people  will  be  best  conserved  by  so  doing.  It  is 
clearly  the  duty  of  the  State  to  do  everything  in  its 
power  to  improve  its  natural  highways  and  develop 
new  ones  wherever  the  commercial  and  social  life  of 
the  people  will  be  furthered  thereby. 

If,  for  example,  a  ship  canal  from  the  Hudson  River 
to  the  great  lakes  would  unquestionably  promote  the 
commerce  of  the  country  and  be  a  great  national  bless- 
ing, the  national  government  should  not  refrain  from 


A 


Transportation  in  its  Relation  to  the  State.     99 

the  undertaking,  even  though  the  work  might  be  too 
heavy  to  attract  private  capital  and  a  generation  might 
pass  awa}^  before  the  State  began  to  reap  an  adequate 
pecuniary  reward.  By  all  means  let  the  necessary 
financial  aid  of  the  United  States  be  given  to  the  lan- 
guishing Nicaragua  Canal  project.  For  the  most  careful 
students  of  the  matter  fully  agree  that  "  it  would  be  a 
wise  act  of  public  policy,  second  in  importance  to  no 
other  in  the  history  of  our  country,  and  a  general  bene- 
fit in  promoting  our  commerce  and  industry  in  every 
section. ' ' 

As  a  merely  financial  operation  the  United  States 
would  be  justified,  they  tell  us,  in  aiding  the  building 
of  this  canal.  But  it  ought  to  be  done  as  a  work  for 
the  people  of  America  and  the  world,  apart  from  the 
question  of  its  financial  advantage.  If  it  is  not  built 
under  the  control  of  the  United  States  it  probably  will 
be  by  some  foreign  maritime  power,  and  thus  at  any 
time  it  might  become  a  menace  to  our  interests  as  a 
people,  instead  of  a  peaceful  highway  for  the  world's 
commerce  and  a  monument  to  American  statesmanship. 
The  political  history  of  the  Suez  Canal  ought  to  teach 
us  a  lesson. 

Beyond  all  question,  the  most  important  agency  in 
modern  transportation  is  the  railroad.  ' '  Of  all  the 
factors  that  have  contributed  during  this  century," 
says  a  well-known  writer,  "to  the  growth  of  wealth, 
to  the  increase  of  material  comfort,  and  the  diffusion 
of  knowledge,  the  railway  plays  the  most  important 
part.  ...  In  its  aggregate  it  represents  a  larger 
investment  of  capital  than  any  other  branch  of  hu- 
man activity  ;  and  the  service  that  it  renders  and  has 
rendered  to  society  is,  both  from  industrial  and  com- 
mercial points  of  view,  greater  than   is  rendered  bj^ 


lOO  The  Sphere  of  iJie  State, 

any  other  single  service   to   which   men  devote  their 
activities." 

Roads  in  all  ages  have  been  the  bearers  of  civiliza- 
tion. The  Romans  extended  their  sway  over  the  then 
known  world  quite  as  much  by  their  roads  as  by  their 
military  prowess.  In  our  day  roads  in  the  shape  of  \ 
railways  have  diffused  the  benefits  of  civilization  over 
nearly  the  whole  earth.  Space  is  practically  annihi- 
lated. Even  the  necessities  of  life  in  one  portion  of  the 
earth  may  come  from  parts  the  most  distant,  the  bread 
of  the  average  lyondoner  being  brought  from  Dakota  or 
Crimea,  and  the  fruits  on  his  table  from  California  or 
Ceylon. 

The  amount  of  capital  that  has  been  invested  in 
railroads  during  the  last  fifty  years  is  almost  beyond 
our  comprehension.  Even  in  1881  it  had  reached  the 
enormous  sum  of  $13,000,000,000,  almost  half  of  all 
the  debts  contracted  during  the  last  few  hundred  years 
in  carrying  on  all  the  wars  and  constructing  all  the 
internal  improvements  of  all  the  nations  of  the  earth. 
Mulhall  gives  the  estimate  for  1888  as  more  than! 
$27,000,000,000.  I 

In  its  relation  to  this,  the  most  powerful  of  all 
agencies  within  its  borders  for  good  or  for  ill,  three 
possible  courses  are  open  to  the  State,  each  with  its 
own  peculiar  advantages  and  disadvantages.  In  the 
first  place  there  is  the  system  of  direct  governmental 
control,  of  which  Germany,  Belgium,  and  Australia 
are  good  illustrations.  2.  The  system  of  indirect  gov- 
ernmental control  through  a  commission,  as  in  France. 
3.  The  system  of  non-interference.  In  other  words, 
the  same  degree  of  "free  competition"  as  exists  in 
the  case  of  corporations  formed  purely  for  production 
or  trade. 


Transportation  in  its  Relatio7i  to  the  State.     loi 

The  State,  as  an  organic  brotherhood,  ought  to 
adopt  that  one  of  these  three  courses  which,  under 
the  given  conditions,  will  most  promote  the  good 
of  all. 

As  the  system  for  managing  property  of  any  kind 
that  is  adopted  in  one  generation  is  not  of  necessity  the 
best  system  for  the  next  generation,  so  private  manage- 
ment of  the  railroads  may  be  the  best  for  one  decade  and 
governmental  control  for  another,  and  vice  versa.  It  is 
an  interesting  historical  fact,  however  we  may  try  to 
explain  it,  that  the  management  of  railroads  is  going 
through  the  same  evolution  that  the  ordinary  high- 
ways went  through  before  them.  A  well  known  writer, 
speaking  of  the  roads  of  the  middle  ages,  says  :  "  Such 
ways  as  there  were^ formed  part  of  the  property  through 
which  they  ran  ;  and  when  the  ownership  passed  into 
the  hands  of  a  feudal  lord,  he  obtained  property  rights 
over  the  road.  But  as  the  central  government  grew  in 
power  in  various  states  of  Europe,  from  the  sixteenth 
to  the  eighteenth  century,  it  also  laid  claims  to  rights 
over  the  roads  ;  first,  in  the  form  of  a  right  to  le\^ 
tolls  ;  much  later,  in  undertaking  to  build  roads,  and 
maintain  them  under  its  own  control." 

When  the  railroad  was  first  introduced,  nobody 
thought  of  it  as  anything  more  than  an  improved  high- 
way. It  was  supposed,  of  course,  that  all  the  carriages 
would  be  obliged  to  run  in  a  certain  groove,  but  any 
one  was  to  be  allowed  to  run  his  carriage  over  the  road, 
provided  only  he  paid  the  toll.  This  is  well  illustrated 
by  the  charter  of  the  Ithaca  &  Owego  Railroad  Co. 
The  twelfth  section  of  that  charter  reads  as  follows : 
"All  persons  paying  the  toll  aforesaid  may,  with  suit- 
able and  proper  carriages,  use  and  travel  upon  the 
said  railroad,  subject  to  such  rules  and  regulations  as 


102  The  Sphere  of  the  State. 


the  said  corporators  are  authorized  to  make  by  the  9th 
section  of  this  act." 

The  very  first  projectors  of  the  railroad,  foreseeing 
that  it  would  almost  entirely  supplant  the  ordinary 
highway,  strenuously  insisted  upon  direct  govern- 
mental control.  Stephenson  himself,  before  a  committee 
of  Parliament,  strongly  advised  against  leaving  so 
important  a  matter  to  competition.  For,  said  he, 
"where  combination  is  possible,  competition  is  ex- 
cluded." It  is  certainly  true  that  every  country  since 
his  day,  that  has  allowed  its  railroads  to  be  built  by 
private  enterprise,  has  developed  a  large  class  of  un- 
scrupulous operators,  who  have  rapidly  achieved  great 
fortunes  by  the  manipulation  of  stocks  on  the  exchange, 
and  a  large  number  of  reckless  officials  have  become 
suddenly  rich  by  quite  other  means  than  the  effi- 
cient administration  of  the  properties  committed  to  their 
charge. 

It  can  hardly  be  doubted  that  the  railroads  have 
already  advanced  in  every  civilized  country  beyond 
the  stage  of  a  purely  private  corporation.  The  daily 
life  of  the  people,  their  property,  their  business,  their 
social  pleasures,  are  too  intimately  connected  with  rail- 
roads to  make  it  reasonable  for  the  State  to  entrust 
their  management  exclusively  to  a  few  magnates  who 
have  no  other  interest  in  the  people  than  that  of  dollars 
and  cents.  There  is  no  reason  to  suppose  that  the 
States  that  have  adopted  governmental  control  desire 
to  change  their  method,  or  that  the  people  are  not  far 
better  satisfied  with  such  management  than  they  have 
ever  been  with  any  other. 

When  lycon  Say,  as  minister  of  France,  discouraged 
in  his  budgets  additional  outlays  for  the  acquisition  by 
the  State;  of  the  railroads,  the  Chamber  by  an  over- 


Transportation  in  its  Relation  to  the  State.     103 

whelming  majority  defeated  his  proposals  and  reaffirmed 
the  determination  of  France  to  gain  possession  of  its 
railways  even  before,  if  possible,  the  expiration  of  the 
ninety  years  of  the  original  concession. 

In  England  in  1873  there  was  an  entire  reversal  of 
the  policy  that  had  prevailed  down  to  that  period. 
The  notion  that  railroads  are  private  enterprises  was 
completely  abandoned.  The  political  thinkers  of  the 
kingdom  had  learned  by  experience  that  there  was  at 
least  one  department  of  human  activity  where  the 
doctrine  of  "free  competition"  would  not  apply.  In 
1873  a  commission  was  appointed  to  see  that  the  laws 
were  properly  obeyed  by  the  railway  companies,  and 
that  the  interests  of  the  public  should  not  suffer. 
Notwithstanding  the  strenuous  efforts  of  the  railway 
corporations  to  prevent  it,  the  commission  was  recon- 
stituted in  1878  with  enlarged  powers  and  made  a 
permanent  tribunal. 

"  With  the  appointment  of  the  commission  of  1873," 
says  Simon  Sterne  in  his  History  and  Political  Economy 
of  Railroads,  a  work  I  have  made  much  use  of  in  this 
chapter,  "the  English  railway  system  entered  upon  a 
new  phase.  A  proposition  of  the  ownership  by  the 
State  of  the  railways  of  England,  which  twenty  years 
ago  was  looked  up  as  chimerical,  is  now  regarded  as  a 
very  possible,  and  will  very  soon  be  regarded  as  a  very 
probable  contingency." 

In  the  United  States  we  have  passed  through  the 
period  of  non-interference  in  the  management  of  rail- 
roads, and  have  arrived  at  the  stage  of  governmental 
supervision  by  commissions.  In  1850  New  York  de- 
liberately abandoned  the  plan  of  governmental  super- 
vision by  its  general  railroad  act  of  that  year,  which 
allowed  any  twenty-five  persons,  by  the  mere  act  of 


1 04  The  Sphere  of  the  State. 


filing  articles  of  incorporation  in  the  office  of  the 
Secretar}^  of  Stiite,  to  become  a  railroad  corporation, 
endowed  with  power  to  take  property  on  appraisal  and 
to  run  lines  wherever  they  saw  fit.  Most  of  the  com- 
monwealths followed  the  example  of  New  York.  All 
parties  seem  to  have  honestly  expected  that  monopolies 
would  disappear,  and  that  the  principle  of  free  com- 
petition would  give  them  all  of  the  advantages  of 
governmental  supervision  and  none  of  its  ills.  When 
in  1857  many  of  the  railroads  went  into  bankruptcy, 
committees  of  reorganization  took  them  in  charge. 
The  result  was  that  they  came  out  of  bankruptcy  with 
a  larger  capitalization  than  they  went  in  ;  and  in  order 
to  pay  the  interest  on  this  watered  stock  in  addition  to 
their  other  expenses,  the  managers  of  the  roads  were 
obliged  to  bleed  all  non-competitive  points  ;  for  there 
alone  did  they  possess  monopoly  power. 

Then  came  the  era  of  land  grants  and  lavish  appro- 
priations. The  United  States  government  gave  to  a 
single  corporation  47,000,000  acres  of  land  as  a  subsidy, 
.  and  "the  State  of  New  York  paid  to  the  various  rail- 
'  roads  within  its  borders  about  $8,000,000,  of  which  about 
$5,000,000,  granted  to  the  Erie  Railroad  Company,  was 
wholly  lost,  and  granted  about  $30,000,000  in  munici- 
pal and  county  subscriptions."  In  spite  of  all  this 
assistance,  unprecedented  in  the  history  of  any  country, 
"before  the  end  of  1874  108  railway  companies  were 
insolvent,  and  interest  was  unpaid  on  more  than 
/ioo,ooo,ooo  ($497,807,660)  of  mortgage  bonds  which 
they  had  issued." 

But  by  the  same  system  of  reorganization  as  was 
adopted  in  1857  the  railroads  again  issued'  forth 
from  their  insolvency  with  more  watered  stock,  and 
again  began  the  process   of  oppressing   local   trafl&c. 


Transpor'tation  in  its  Relation  to  the  State.     105 

This  oppression  was  carried  to  such  excess  as  to 
become  unendurable. 

In  resistance  to  it  many  of  the  legislatures  through- 
out the  West  passed  what  are  known  as  ' '  granger 
laws,"  by  which  commissioners  w^ere  appointed  to 
regulate  railroad  rates,  to  forbid  preferences,  and  to 
have  general  oversight  of  railwa}^  aflfairs.  This  legisla- 
tion was  violently  opposed  by  the  railroad  companies, 
but  was  completely  vindicated  by  the  United  States 
Supreme  Court.  A  similar  commission,  though  with 
somewhat  limited  powers,  was  appointed  in  Massachu- 
setts and,  after  a  long  struggle,  in  New  York.  Now 
most  of  the  commonwealths  have  railroad  commis- 
sioners with  more  or  less  extensive  powers,  and  the 
central  government  through  its  interstate  commerce 
commissioners  has  never  in  its  history  approached  so 
near  to  absolute  control  over  any  corporation  as  it 
exercises  to-day  over  our  national  highways. 

The  committee  appointed  by  the  New  York  Assembly 
in  1879  to  investigate  the  railroad  systems  in  that 
'Commonwealth  give  us  in  their  report  a  most  vnvid, 
but  yet  truthful,  picture  of  the  fruits  of  the  "non- 
interference "  or  "  free  competition  ' '  policy  of  railroad 
management,  and  what  the  policy  would  naturally  lead 
to  in  any  other  part  of  the  country  under  similar  con- 
ditions. They  found,  for  example,  that  the  New  York 
Central  Railroad  Co.  watered  its  stock  to  the  amount 
of  almost  $9,000,000  before  its  consolidation  with  the 
Hudson  River  Railroad  Co.,  and  over  $44,000,000  after 
the  consolidation,  thus  laying  the  foundation  of  the 
colossal  wealth  of  the  Vanderbilts  ;  that  the  Erie  Rail- 
way Co.  watered  its  stock  and  bonds  not  less  than 
$70,000,000  ;  that  there  was  an  entire  abandonment  on 
most  of  the  roads  of  any  fixed  schedule  of  tariff  rates 


1 06  The  Sphere  of  the  State. 

for  local  traffic,  the  New  York  Central,  at  the  time  of 
the  investigation,  having  upwards  of  6,000  different 
contracts  for  the  carriage  of  local  freights,  granted  at 
the  caprice,  or  whim,  or  interest  of  the  freight  agent. 

To  any  one  at  all  familiar  with  the  facts,  it  would 
seem  to  be  bej'ond  all  reasonable  dispute  that  the 
United  States,  in  common  with  every  other  civilized 
land,  should  entirely  abandon  the  policy  cf  free  com- 
petition in  it3  treatment  of  railroads,  and  by  a  strict 
governmental  supervision  should  at  once  institute  the 
following  reforms  :  i .  It  should  prevent  the  building 
of  superfluous  railroads.  Most  duplicate  lines  are  of 
this  sort.  Few  railroads  in  any  part  of  the  world  have 
their  carrying  capacity  taxed  to  the  utmost.  The 
construction  of  a  parallel  line  where  the  existing  line  is 
entirely  competent  involves  an  unnecessarj-  expenditure 
of  capital,  divides  the  traffic,  and  results  in  the  long 
run  in  higher  charges.  For  although  a  short  war  of 
rates  may  sometimes  follow  the  establishment  of  such 
a  line,  the  long-continued  peace  that  its  ultimate  ab- 
sorption brings  about  usually  proves  far  more  injurious 
to  the  public  welfare  than  any  supposed  benefit  that 
its  existence  at  first  seemed  to  promise.  2.  It  should 
prevent  misrepresentation  on  the  part  of  railroad  corpo- 
rations of  their  business  and  their  profits.  The  admin- 
istration of  the  roads  should  be  in  the  full  light  of  the 
public.  The  State  should  compel  their  managers  to 
render  at  stated  periods  a  full  and  accurate  account 
of  their  operations,  so  that  every  citizen  may  know 
with  authority  their  earnings  and  liabilities.  If  any 
deception  is  practised  in  the  matter,  the  government 
should  see  that  the  parties  responsible  for  it  are 
severely  punished.  3.  The  State  should  require  that 
the  stock  of  railroad  corporations  be  fairly  and  hon- 


Transportation  in  its  Relatiofi  to  the  State.     107 

estly  capitalized,  and  that  excessive  profits  be  pre- 
vented by  proper  reduction  in  rates.  It  is  the  opinion 
of  railroad  experts  that  unlimited  competition  in  railroad 
affairs  and  fictitious  capitalization  go  hand  in  hand. 
So  long  as  a  rival  enterprise  may  at  any  time  come 
in,  and  compel  railroad  companies  to  divide  the  field 
they  have  developed,  regardless  of  the  fact  as  to 
whether  they  have  received  any  fair  compensation  for 
their  investment,  they  will  continue  to  resort  to  the 
scheme  of  a  semi -fraudulent  capitalization  to  obtain 
an  immediate  return  for  their  labor  and  money.  The 
only  way  to  have  a  capitalization  that  closely  corre- 
sponds to  the  actual  cost  of  construction  and  equip- 
ment is  to  abandon  zVz  to  to  the  position  taken  by 
Sidney  Dillon,  when  president  of  the  Union  Pacific, 
that  "  a  citizen,  simply  as  a  citizen,  commits  an  imper- 
tinence when  he  questions  the  right  of  a  corporation  to 
capitalize  its  properties  at  any  sum  whatever,"  and 
maintain  just  the  opposite  ground. 

Careful  students  tell  us  that  the  present  railroad 
system  of  the  United  States  could  easily  be  replaced 
for  at  least  $1,000,000,000  less  than  its  present  valua- 
tion. Lack  of  proper  governmental  supervision  is 
chiefly  the  reason  why  the  people  are  made  to  pay  every 
year  for  transportation  millions  of  dollars  more  than  it 
actually  costs,  or  than  a  just  recompense  for  the  money 
invested  actually  requires.  4.  The  State  should  also 
prevent  railroad  companies  from  fixing  their  rates  on 
the  maxim  of  charging  ' '  all  that  the  trafiic  will  bear. ' ' 
This  maxim  makes  the  railroad  company  a  silent 
partner  in  every  business  along  the  line.  Without  any 
investment  of  capital,  it  can  determine  the  success  or 
the  failure  of  every  industry  within  its  sphere  of 
influence. 


1 08  Tlic  Sphere  of  the  State. 

A  railroad  should  not  be  allowed  to  have  one  set  of 
rates  for  one  person  and  another  set  for  another.  Nor 
should  a  railroad  be  allowed  to  make  sudden  and 
arbitrary  changes  in  its  rates.  The  sudden  lessening 
of  the  tariff  rates  may  be  as  injurious  to  commercial 
interests  as  the  sudden  raising.  Every  man  doing 
business  with  the  road  should  know  from  the  published 
schedule  just  what  to  expect,  and  the  government 
should  guarantee  him  fair  treatment.  ' '  Of  all  the  evils 
incident  to  American  railway  administration,"  says  a 
high  authority,  "  that  of  personal  favoritism  has  been 
the  most  shameless  and  the  most  mischievous. ' ' 

5.  The  State  should  compel  the  boards  of  railroad 
directors  to  adopt  the  principle  of  minority  representa- 
tion. Minority  representation  would  go  far  towards 
repressing  secrecy  of  management,  which  gives  directors 
almost  imlimited  opportunity  to  exploit  the  stock  of 
their  roads  as  they  see  fit,  unknown  to  the  general 
public.  Much  of  the  stock  of  our  American  railways  is 
held  abroad,  and  is  not  transferred  on  the  books  to  the 
actual  owners.  Who  the  fictitious  holders  are,  as  a 
rule,  is  known  only  to  the  directors.  By  secretly  sell- 
ing out  their  real  holdings  at  a  high  price,  and  obtain- 
ing the  power  to  represent  these  fictitious  holdings, 
they  may  capture  the  road  from  the  real  owners,  and 
use  it  as  they  will.  The  State  is  the  only  power  that 
can  remedy  this  evil.  By  compelling  the  adoption  of 
the  minority  system  of  representation,  the  whole  con- 
stituent body  would  be  represented  in  the  board  of 
direction.  The  opportunity  for  fictitious  owners  to 
wreck  the  road  would  be  reduced  to  the  minimum. 

6.  The  State  should  compel  railroads  to  have  a 
higher  regard  for  the  sacredness  of  human  life.  The 
total  number  killed  and  injured  on  the  railroads  of  the 


Transportation  ui  its  Relation  to  the  State.     109 

United  States,  according  to  the  census  of  1880,  was 
8215.  The  fourth  annual  report  of  the  Interstate 
Commerce  Commission  makes  the  number  for  the  year 
ending  June  30,  1889,  35,354. 

' '  These  figures, ' '  the  commissioners  go  on  to  say, 
"show  that  one  death  occurs  for  every  357  employes 
and  one  injury  for  every  35  employes.  Or,  if  a  similar 
statement  be  made  for  trainmen  .  .  .  one  death  occurs 
for  every  117  employes  and  one  injury  for  every  twelve 
men  employed. ' '  The  statistics  for  the  last  three  years 
are  even  more  appalling.  Wellington  did  not  lose  so 
many  at  the  battle  of  Waterloo,  nor  Meade  at  Gettys- 
burg. The  killed  and  wounded  on  both  sides  at  the 
battle  of  Sedan  scarcely  equal  the  number  of  men  an- 
nually killed  or  maimed  in  this  country  under  our 
present  system  of  railroad  management.  It  is  allowed 
by  all  that  uniform  automatic  couplers  and  automatic 
brakes  would  reduce  this  destruction  of  life  and  limb 
at  least  a  third.  Every  railroad  should  be  compelled 
to  adopt  them  within  a  certain  reasonable  period,  re- 
gardless of  the  question  as  to  whether  it  will  reduce  for 
a  time  their  annual  dividends.  The  sacrifice  of  life  is 
<  three  times  as  great,  proportionally,  in  America  as  in 
England  and  four  or  five  times  as  great  as  in  France. 
Neither  speed  nor  comfort  can  atone  for  this  reckless 
destruction  of  human  life.  Our  lawmakers  should 
fully  investigate  the  causes  that  lead  to  so  many  dis- 
asters.    Most  of  them  can  and  ought  to  be  prevented. 

Our  national  government,  while  justly  content  for 
the  present  to  manage  its  railroads  through  the  system 
of  commissions,  in  common  with  the  other  civilized 
nations  of  the  earth  should  be  looking  forward  to  the 
time  when  it  can  safely  adopt  entire  governmental 
control. 


1 10  The  Sphere  of  the  State. 

The  amount  of  iiioney  the  railroads  gather  from  the 
people  of  the  United  States  every  year  for  transporta- 
tion is  several  times  that  of  the  entire  revenue  of  our 
national  government.  Yet  every  dollar  of  it  is  in  the 
hands  of  directors  who  have  scarcely  any  account- 
ability to  the  public,  or  even  to  their  own  share- 
holders. The  political  influence  that  is  wielded  by 
railroad  managers  is  almost  beyond  computation. 
Whenever  they  wish  to  exercise  it  their  power  in  elect- 
ing governors,  forming  legislatures,  and  appointing 
committees  is  wellnigh  irresistible. 

In  any  collision  between  the  railroads  and  the 
government  the  pecuniary  interests  of  the  people  are 
decidedly  with  the  railroad,  for  the  bonds  of  the  rail- 
roads many  times  exceed  in  value  the  bonds  of  the 
government.  It  seems  perfectly  clear,  therefore,  that 
a  resort  to  the  ballot  under  existing  conditions  is  no 
remedy  for  this  evil.  Our  political  machinery  falls  far 
short  of  being  equal  to  the  emergencies  of  the  present. 
Men  of  far  higher  ability  and  character  must  be 
entrusted  with  the  affairs  of  State  before  it  will  be  wise 
to  increase  very  much  the  sphere  of  government. 

But  civil-service  reform  is  only  one  of  the  crying 
needs  of  our  time.  The  people  must  be  aroused  to  see 
the  fact  that  all  natural  monopolies  ought  not  to  be 
conducted  as  private  enterprises,  but  as  public  trusts, 
and  that  of  all  natural  monopolies  those  that  have  to 
do  with  transportation  are  the  greatest.  The  system 
of  State  and  Interstate  Commissions  will  do  much  to 
enlighten  the  people  as  to  the  nature  and  difficulties  of 
the  railway  problem,  and  thus  prepare  them  to  act  in 
reference  to  it  with  a  wise  discretion.  But  we  should 
look  upon  commissions  as  a  means  to  an  end,  not  as  an 
end.  in  itself.     Whenever  the  moral  administration  of 


Transportation  in  its  Relation  to  the  State.     1 1  i 

our  government  will  bear  the  strain  put  upon  it  by 
such  an  act,  it  is  beyond  reasonable  doubt  that 
the  true  interests  of  the  people  require  that  in  this 
country  as  in  all  others  the  means  of  transportation 
should  be  directly  under  the  control  of  the  agents  of 
the  people  in  their  organic  capacity  as  a  State. 


CHAPTER  VII. 

THE  STATE  AND   TAXATION. 

The  saying  is  attributed  to  Colbert,  the  celebrated 
finance  minister  of  Louis  XIV.,  that  "the  act  of  taxa- 
tion consists  in  so  plucking  the  goose  as  to  procure  the 
largest  quantity  of  feathers  with  the  least  possible 
amount  of  hissing."  The  history  of  taxation  abun- 
dantly testifies  that  all  governments,  whatever  their 
form  or  character,  have  ever  made  temporary  circum- 
stances and  a  desire  to  retain  power  the  ruling  motive 
for  determining  who  shall  pay  the  taxes  and  how  they 
shall  be  levied. 

David  A.  Wells,  after  speaking  of  the  different  ex- 
*  pedients  governments  have  devised  for  raising  taxes, 
says  :  "  It  is  nevertheless  probably  true  that  there  is 
not,  at  the  present,  a  single  existing  tax  decreed  by 
despotism,  or  authorized  by  the  representatives  of 
the  taxpayers,  which  has  been  primarily  adopted  or 
enacted  with  reference  to  any  involved  economic  prin- 
ciples, or  which  has  primarily  sought  to  establish  the 
largest  practical  conformity,  under  the  existing  circum- 
stances, to  what  are  acknowledged  to  be  the  funds- 
mental  principles  of  equity,  justice,  and  rational 
liberty." 

It  is  chiefly  because  of  these  facts  that  the  payment 
of  taxes  is  so  frequently  regarded  as  an  unmitigated 


The  State  and  Taxation.  113 

evil — something  concerning  which  almost  any  means 
are  legitimate  that  will  help  one  to  a  way  of  escape. 
But  yet  nothing  is  clearer  thgn  that  taxation  equitably 
administered  is  a  great  blessing  ;  that  it  does  more  than 
almost  anj'  other  act  to  further  human  prosperity  and 
happiness.  No  organized  government  could  exist 
without  taxation.  There  would  be  no  one  to  formulate 
the  law  and  no  one  to  execute  it,  and  thus  no  securitj' 
to  life  or  property.  Nothing  could  lae  done  to  promote 
the  intelligence  of  the  people  or  punish  crime.  The 
streets  could  not  be  cleaned,  paved,  or  lighted.  Parks 
and  bridges  could  not  be  built  or  anything  be  done  to 
protect  the  people  from  disease  and  pestilence.  Indeed, 
it  may  truthfully  be  said  that  civilization  and  taxation 
go  hand  in  hand,  that  a  high  degree  of  civilization 
cannot  exist  without  high  taxes,  and  that  the  higher 
the  civilization,  other  things  being  equal,  the  higher 
the  taxation. 

It  is  of  great  importance  for  us  to  keep  in  mind,  how- 
ever, that  all  legitimate  taxation  is  limited  to  the  needs 
of  the  public,  and  that  no  tax  can  rightly  be  levied  for 
any  other  purpose.  "  To  lay  with  one  hand  the  power 
of  the  government  upon  the  property  of  the  citizen," 
said  Justice  Miller,  in  giving  the  opinion  of  the  United 
States  Supreme  Court  in  the  famous  Topeka  bond  case, 
"  and  with  the  other  bestow  it  upon  favored  individuals, 
to  aid  private  enterprises  and  build  up  private  fortunes, 
is  none  the  less  robbery  because  it  is  done  under  the 
forms  of  the  law  and  is  called  taxation."  Judge  Cooley, 
in  his  Principles  of  Constitutional  Law,  admirably  ex- 
presses the  same  truth  when  he  says  :  ' '  Constitutionally 
a  tax  can  have  no  other  basis  than  the  raising  of  revenue 
for  public  purposes,  and  whatever  governmental  exac- 
tion has  not  this  basis,  is  tyrannical  and  unlawful. '  * 


114  'The  Sphere  of  the  State. 

While  all  just  taxation  is  limited  thus  to  the  needs 
of  the  public,  the  right  to  tax  has  no  other  limits,  and 
involves  also  the  right  to  destroy.  All  the  property  of 
its  subjects  can  be  taken  by  the  government  if  the  peril 
of  the  State  is  so  great  as  to  require  it.  "  If  the  right 
to  impose  a  tax  exists, ' '  says  Chief-Justice  Marshall,  ' '  it 
is  a  right  which  in  its  nature  acknowledges  no  limits." 

Taxation  is  always  an  act  of  sovereignty,  and  belongs 
only  to  the  State  as  a  whole  and  not  to  any  individual 
portion.  This  is  involved  in  the  very  idea  of  the  State. 
As  a  distinct  and  independent  organism  it  could  not 
keep  itself  in  existence  without  the  power  to  obtain 
food  and  air.  Every  true  State  is  a  more  or  less  de- 
veloped brotherhood.  The  brotherhood  as  a  whole 
has  absolute  sovereignty  over  the  individual  members, 
and  has  not  only  the  right,  but  the  duty  to  see  that 
each  member  does  as  much  as  in  him  is  for  the  good  of 
the  brotherhood.  To  tax  is  the  first  and  chief  way  of 
exercising  this  right  and  discharging  this  duty. 

On  the  other  hand,  no  State  has  a  right  to  levy  taxes 
on  any  person  or  object  outside  of  its  own  territorial 
limits.  As  a  recent  decision  of  the  United  States  Su- 
preme Court  expresses  it:  "The  power  of  taxation, 
however  vast  in  its  character  and  searching  in  its  ex- 
tent, is  necessarily  limited  to  subjects  within  the  juris- 
diction of  the  State.  Property  lying  beyond  the  juris- 
diction of  the  State  is  not  a  subject  upon  which  her 
taxing  power  can  be  legitimately  exercised.  Indeed, 
it  would  seem  that  no  adjudication  should  be  necessary 
to  establish  so  obvious  a  proposition." 

It  is  a  great  error  to  hold,  as  do  some  economists 
even  in  our  day,  that  "taxes  are  the  compensation 
which  property  pays  the  State  for  protection."  The 
truth  is  that  every  person  ought  to  support  the  State 


The  State  and  Taxation.  115 

not  because  it  protects  him,  but  because  lie  is  born  a 
member  of  the  State  and  cannot  live  apart  from  the 
State.  The  more  civilized  he  becomes  the  more  de- 
pendent he  is  upon  the  government.  The  attempt  to 
separate  a  man  from  the  State  and  to  treat  him  as  now 
-within  the  State  and  now  without  the  State,  is  an  ab- 
surdity-. The  minimum  of  every  civilized  man's  exist- 
ence includes  the  blessings  of  the  State. 

Even  more  fallacious  was  the  doctrine  of  the  Ameri- 
can revolutionists  of  ' '  No  taxation  without  representa- 
tion." It  is  enough  to  say  of  the  doctrine  that  the 
revolutionists  themselves  abandoned  it  the  moment  they 
obtained  control  of  the  taxing  power. 

Just  here  we  may  be  greatly  helped  in  our  discussion 
of  this  subject  by  observing  that  the  thing  that  makes 
property  of  any  kind  valuable  is  the  existence  of  other 
men.  Wealth  is  power  in  exchange,  and,  of  course, 
no  exchange  can  take  place  unless  two  or  more  persons 
exist  to  make  it.  As  the  people  increase  in  numbers 
and  civilization,  other  things  being  equal,  the  more 
valuable  becomes  property.  Gold  and  silver  dollars 
might  be  as  plenty  as  leaves  on  the  trees  in  mid-sum- 
mer, and  yet  they  would  be  of  little  or  no  value  if  they 
could  not  be  exchanged  for  human  service.  Let  a  man 
try  to  live  by  himself  alone,  and  all  opportunity  to  ac- 
quire wealth  as  well  as  opportunity  to  enjoy  his  wealth 
is  gone,  and  his  wealth  is  gone  also.  Wealth,  there- 
fore, is  a  creation  of  society.  And  what  the  people 
make  valuable  they  have  a  right  in  their  organic  capa- 
city as  a  State  to  take  for  their  own  use  as  the  public 
good  requires. 

But  we  should  greatly  err  if  we  supposed  that  taxa- 
tion consists  in  assessing  and  collecting  from  the  people 
for  the  support  of  the  government  merely  or  chiefly  a 


1 1 6  The  Sphere  of  the  State. 


portion  of  their  property.  For  the  true  position  is  that 
taxation  is  primarily  upon  persons  and  not  upon  prop- 
erty. A  person  who  has  no  property  should  not  for 
that  reason  be  exempt  from  taxation,  nor  should  the 
person  who  has  the  most  property  of  necessity  pay  the 
most  tax.  Property,  as  such,  does  not  owe  any  duty 
to  pay  taxes.  The  State  has  to  do  directly  with  per- 
sons only,  not  with  property.  Every  person  is  under 
obligations  to  support  the  State  because  of  his  very 
existence  in  the  State.  He  is  born  a  member  of  the 
brotherhood  and  is  bound  to  do  all  that  in  him  is  to 
support  the  brotherhood.  The  State  can  do  without 
him,  but  he  cannot  do  without  the  State.  There  might 
come  a  time  in  the  histor}^  of  any  State  when  property 
would  be  of  little  or  no  value  to  the  government,  when 
men  and  not  money  would  be  the  State's  only  need. 
Suppose  the  property  in  New  York  City  to  remain  as 
great  as  it  is  at  the  present  and  a  pestilence  to  leave 
only  a  half  dozen  people  on  the  island  to  enjoy  it.  This 
little  band  of  survivors  would  still  constitute  a  State 
and  have  a  government  and  pay  taxes,  but  it  would  not 
be  a  property  tax.  The  only  service  they  could  render 
the  government  that  would  be  of  any  value  would  be  a 
personal  service. 

In  all  primitive  States  contributions  for  the  support 
of  the  government  are  wholly  personal.  For  there  is 
little  or  no  property  in  such  a  State  to  be  taxed.  The 
largest  tax  of  modern  times  is  a  tax  on  persons.  In 
the  most  highly  developed  nations  of  the  world  the 
duty  of  rendering  militar}-  service,  and  for  an  equal 
period,  is  exacted  of  high  and  low,  rich  and  poor  alike. 
No  one  is  exempted  except  on  the  theory  that  he  will 
more  efficiently  serve  the  State  by  remaining  at  his 
ordinary  tasks. 


The  State  and  Taxation.  1 1 7 

Granting  then  that  all  taxation  is  primarily  on  per- 
sons, we  can  readily  assent  to  the  maxim  laid  down  by 
Adam  Smith  in  his  Wealth  of  Nations  that  ' '  The  sub- 
jects of  every  State  ought  to  contribute  to  the  support 
of  the  government  as  nearly  as  possible  in  proportion 
to  their  respective  abilities."  The  main  question, 
therefore, before  us  is  how  shall  we  estimate  this  ability  ? 
What  system  of  taxation  ought  the  State  to  adopt  in 
order  to  bring  it  about  that  each  person  shall  con- 
tribute as  in  him  is  to  the  support  of  the  government  ? 
It  is  clear,  it  seems  to  me,  that  this  ability  is  not  justly 
estimated  in  our  day  by  the  amount  of  property.  I 
say  in  our  day.  For  there  undoubtedly  is  a  period  in 
the  development  of  States  when  a  general  property  tax 
is  a  just  tax.  In  the  agricultural  stage  of  development 
when  the  means  of  gaining  a  livelihood  are  confined  to 
the  soil,  and  all  property  practically  consists  of  land, 
and  the  implements  and  beasts  of  burden  for  cultivating 
it,  a  property  tax  is  well  suited  to  the  times. 

But  when  the  commercial  stage  of  development  is 
reached  the  economic  conditions  are  almost  wholly 
different.  Trade  is  no  longer  limited  to  the  superflui- 
ties of  adjoining  households.  Wealth  ceases  to  be 
wholly  quantitative  and  becomes  largely  qualitative. 
The  capitalist  now  controls  the  wealth  of  the  country, 
not  the  land-owner.  Personal  property  so  rapidly  in- 
creases that  it  soon  overshadows  real  property  both  in 
amount  and  influence.  All  economists  agree  that  in 
our  modern  industrial  States  the  value  of  personal 
property  far  exceeds  that  of  real  estate.  This  is  true 
even  of  the  agricultural  districts  of  the  far  West.  What, 
then,  must  be  true  of  a  country  so  largely  commercial 
as  the  commonwealth  of  New  York  ?  Yet  personality 
in  New  York  pays  less  than  one  tenth  of  the  public 


1 1 8  The  Sphere  of  the  State. 


charge,  while  realty  pays  more  than  nine  tenths.  Those 
who  possess  stocks,  bonds,  mortgages,  and  the  like, 
practically  escape  taxation,  especially  if  they  be  large 
holders,  and  the  small  owners  of  real  estate  who  have 
the  hardest  fight  for  subsistence  bear  nearly  the  whole 
burden. 

The  present  distress  of  the  farming  portions  of  the 
community  is  largely  due  to  onerous  and  unjust  taxa- 
tion. But  they  will  never  be  relieved  of  this  iniquity 
till  the  State  abandons  the  mediaeval  system  of  a  gen- 
eral property  tax.  It  has  been  abandoned  by  all  the 
great  States  of  modern  times  except  America,  and  it 
will  be  abandoned  here  also  as  soon  as  the  people  once 
get  acquainted  with  its  gross  iniquities. 

Francis  A.  Walker,  in  a  recent  paper  on  "The  Bases 
of  Taxation,"  gives  a  typical  illustration  of  the  practi- 
cal workings  of  what  he  calls  the  ' '  flagrantly  iniqui- 
tous ' '  method  of  laying  the  entire  burdens  of  government 
upon  property,  by  citing  the  case  of  a  farmer  near  a 
certain  New  England  village.  His  little  farm  with  its 
buildings  and  stock  was  assessed  at  $2280,  and  taxed, 
including  his  poll  tax,  $25.94,  the  total  proceeds  of  his 
land,  labor,  and  capital  for  the  year  being  a  little  short 
of  $800.  Many  of  the  mechanics  in  the  village  earned 
more  than  that  amount  annually,  but  because  they  did 
not  choose  to  save  anything  paid  no  tax  at  all.  The 
farmer  is  obliged  to  keep  on  contributing  to  the  support 
of  the  government  essentially  the  same  amount  from 
year  to  year,  though  his  crops  may  often  be  an  utter 
failure,  and  the  mechanic  who  receives  the  chief  benefit 
of  the  government  continues  to  contribute  nothing. 

While  all  economists  allow  that  the  general  property 
tax  in  the  United  States  is  a  "dismal  failure,"  and 
heartily  agree  with  the  uniform  testimony  of  the  offi- 


The  State  and   Taxation.  1 1 9 

cials  charged  with  the  duty  of  assessing  and  collecting 
the  tax,  that  in  its  practical  application  "  a  more  un- 
equal, unjust,  and  partial  system  for  taxation  could  not 
well  be  devised,"  some  contend  that  the  trouble  is  not 
with  the  system  itself  but  with  the  mode  of  its  execu- 
tion ;  that,  if  it  were  properly  administered,  it  would 
conform  to  the  ethical  requirements  of  the  case  and  be 
a  just  and  equitable  method  of  raising  the  public  reve- 
nues. But  this  position  is  clearly  seen  to  be  erroneous 
when  we  consider  the  true  nature  of  property  and  recur 
to  the  fundamental  maxim  of  all  righteous  taxation — 
that  it  be  proportional  to  one's  ability  to  pay. 

The  richest  man  is  not  necessarily  the  one  who  has 
the  most  property.  A  man  may  be  rich  and  able  to 
contribute  largely  to  the  support  of  the  government 
who  has  little  or  no  property.  It  has  already  been 
shown  that  all  wealth  is  a  creation  of  society.  We 
have  now  to  observe  that  every  opportunity  to  make 
money  by  serving  the  people  in  any  capacity  is  also  a 
creation  of  society  ;  and  just  as  the  people  have  a  right 
to  take  a  portion  of  the  property  they  make  valuable 
for  the  support  of  the  State,  so  they  have  an  equal  right 
to  take  a  portion  of  the  revenues  derived  from  any  oc- 
cupation which  they  give  the  opportunity  to  pursue. 
To  gather  taxes  from  the  one  source  and  not  from  the 
other  is  a  gross  injustice.  Who  is  there  so  blind  to 
present  conditions  as  to  seriously  defend,  at  least  on 
any  moral  grounds,  a  system  that  compels  the  owner 
of  $10,000  worth  of  property,  whatever  its  annual  prod- 
uct, to  pay  an  annual  tax  of  $100,  and  never  asks  the 
bank  president,  the  doctor,  the  lawyer,  or  the  minister 
who  receives  a  regular  yearly  income  of  $10,000  for  a 
single  penny  ?  The  doctrine  of  ' '  the  equal  taxation 
of  all  property  ;  the  non-taxation  of  labor,"  is  an  an- 


1 20  The  Sphere  of  the  State. 


tiquated  doctrine.  It  has  been  abandoned  in  almost 
every  civilized  land.  It  can  not  be  justified  by  any 
ethical  principle  and  is  out  of  harmony  with  all  existing 
economic  facts. 

Rejecting  then  the  property  system  of  taxation  as  the 
true  basis  of  taxation,  we  come  next  to  inquire,  Does 
expenditure  furnish  us  such  a  basis  ?  Ought  what  a 
person  consumes  to  determine  the  portion  that  he 
should  contribute  to  the  support  of  the  government  ? 
This  theory,  which  is  one  of  the  oldest  in  economic 
history,  an  able  writer  states  as  follows  :  "  Every  man 
ought  to  be  taxed  on  all  that  property  which  he 
consumes  or  appropriates  to  his  exclusive  use."  In 
opposition  to  this  view  it  may  be  said,  in  the  first  place, 
that  it  is  economically  impossible  for  the  government 
to  take  anything  for  its  support  from  a  man  who  does 
not  earn  the  bare  necessities  of  life.  To  attempt  to  do 
so  would  issue  only  in  failure.  For  what  the  State  took 
away  from  such  a  man  with  one  hand  as  a  tax-payer  it 
must  return  to  him  with  the  other  as  a  pauper. 

In  the  second  place,  on  what  ethical  ground  should  , 
we  exempt  men  from  paying  a  tax  on  that  portion  of 
their  wealth  that  they  do  not  consume  ?  It  is  from 
what  they  have  left  after  supplying  the  necessities  of 
life  that  they  are  most  able  to  contribute  to  the  expenses 
of  the  government.  The  first  maxim  of  a  just  system 
of  taxation,  that  a  person  should  contribute  to  the  pub- 
lic revenue  according  to  his  ability,  is  plainly  violated 
by  such  an  exemption.  The  man  with  millions  and 
few  personal  expenses  might  often  by  this  arrangement 
contribute  less  to  the  support  of  the  government  than 
the  day  laborer  with  a  large  family  who  possessed 
almost  nothing. 

It  can  hardly  be  doubted   that  our  national  taxes 


The  State  and  Taxation.  121 

upon  salt,  coal,  clothing,  and  the  materials  used  in  the 
construction  of  dwellings,  violate  the  ver>-  first  prin- 
ciples of  justice  and  economics.  They  enhance  the 
cost  of  mere  subsistence,  and  any  act  of  the  govern- 
ment that  does  that  is  oppressive  and  unjust.  They 
are  as  another  expresses  it,  "a  veiled  or  disguised  tax 
on  the  wages  of  labor,'  and  pre-eminently  injurious  to 
the  welfare  of  the  very  classes  they  profess  to  benefit. 
Just  as  the  property  system  of  taxation  oppresses  the 
farmer  and  compels  him  to  contribute  far  more  than 
his  due  share  to  the  public  revenues,  so  the  expendi- 
ture system,  or  a  tax  on  consumption,  oppresses  the 
working  classes,  obliging  them  to  pay  not  only  their 
own  taxes  but  a  large  proportion  of  the  taxes  of  others. 

It  may  almost  be  called  an  axiom  that  the  revenues 
of  the  State  should  be  derived  from  the  revenues  of  its 
members.  In  the  modern  State  the  revenues  of  the 
people  come  to  a  great  extent  from  the  stocks  and 
bonds  of  corporations.  Hence  one  of  the  chief  con- 
tributions to  the  support  of  the  government  should 
come  from  that  source.  Corporations  are  the 
creations  of  the  State.  They  are  allowed  by  the  State 
to  direct  and  control  the  industry  of  the -country.  The 
wealth  of  the  nation  is  very  largely  in  their  hands. 
By  putting  a  tax  on  their  annual  earnings  the  State 
properly  recognizes  the  great  change  that  has  taken 
place  in  economic  conditions.  It  adapts  itself  to  pres- 
ent economic  facts. 

In  estimating  the  tax  that  corporations  should  be 
required  to  pay  the  government,  the  basis  ought  not  to 
be  general  property.  For  property  no  more  furnishes 
a  just  measure  of  abihty  to  pay  taxes  in  the  case  of 
corporations  than  in  the  case  of  individuals,  and  we 
have  already  seen    how  iniquitous  such  a  system   is 


1 2  2  The  Sphere  of  the  State. 

both  in  theory  and  practice.  To  make  the  cost  of  the 
property  the  basis  would  be  even  more  unjust.  No  one 
would  maintain  that  the  original  cost  bore  any  neces- 
sary connection  with  present  value,  or  power  to  pay 
tribute  to  the  government.  Vital  objections  from 
ethical  grounds  may  also  be  made  against  assessing 
the  tax  upon  the  capital  stock.  If  it  is  assessed  upon 
the  par  value  of  the  stock,  the  tax  can  easily  be 
avoided  by  issuing  a  nominally  small  capital  stock, 
while  the  market  value  of  the  stock  remains  several 
times  its  face  value.  If  it  is  assessed  upon  the  market 
value,  heavily  bonded  corporations  would  escape 
taxation  altogether,  for  the  capital  stock  alone  would 
represent  only  a  fraction  of  the  real  value  of  the  prop- 
erty. And  if  no  dividends  are  paid  on  the  stock,  its 
market  value,  being  almost  wholly  dependent  on  the 
manipulations  of  a  stock  exchange,  would  be  no  meas- 
ure of  its  real  value,  or  the  productiveness  of  the 
invested  capital. 

The  only  ethical  basis  of  a  corporation  tax  is  earn- 
ings. By  this  we  do  not  mean  gross  earnings,  for  they 
may  often  be  quite  out  of  proportion  to  the  actual  earn- 
ings. Two  companies  may  have  equally  large  gross 
receipts  while  the  necessary  cost  of  operation  or  man- 
agement in  the  one  case  is  far  greater  than  in  the 
other.  Their  ability  to  pay  taxes  would  therefore 
greatly  differ.  Nor  do  we  mean  by  earnings  dividends. 
If  the  tax  was  confined  to  dividends,  not  only  would 
the  profits  that  were  put  into  the  reserve  fund  escape 
taxation  and  the  earnings  that  were  devoted  to  new  con- 
structions or  to  new  equipment,  but  two  corporations 
with  the  same  earnings,  the  one  having  capital  stock 
only,  the  other  a  bonded  indebtedness  on  which  it  paid 
out  half  of  its  profits,  while  paying  a   nominally  equal 


The  State  and  Taxation.  123 

tax,    would   actually   be   paying    a    grossly    unequal 
one. 

We  mean  by  earnings  net  earnings,  net  receipts, — 
what  is  left  of  the  gross  receipts  after  deducting  actual 
current  expenses.  Every  corporation  should  be  made 
to  contribute  to  the  support  of  the  government, 
according  to  its  actual  net  profits.  Of  course 
these  earnings  can  be  diminished  by  paying 
unduly  large  salaries  to  the  officials,  but  this  can 
happen  only  in  those  corporations,  now  comparatively 
few,  in  which  all  the  stock  is  owned  by  its  managers. 
The  actual  cases  of  such  evasion  are  so  insignificant 
that  the  American  commonwealths  that  have  adopted 
this  tax  e.  g. ,  Pennsylvania,  do  not  complain  of  it,  nor 
do  any  of  the  States  of  Europe  where  this  method  of 
taxation  is  almost  universal. 

The  true  position  with  regard  to  this  mode  of  taxa- 
tion cannot  be  more  clearly  or  forcibly  expressed  than 
in  the  words  of  Professor  Seligman,  to  whom  I  am 
indebted  for  many  of  the  views  expressed  above  : 
' '  Net  receipts  form  the  most  logical  basis  for  corporate 
taxation.  The  tax  is  not  unequal  in  its  operation, 
like  the  gross-earnings  tax.  It  holds  out  no  induce- 
ment to  check  improvements  like  a  general  property 
tax.  It  is  just,  it  is  simple,  it  is  perfectly  proportional 
to  productive  capacity.  In  short  it  satisfies  all  the 
requirements  of  a  scientific  system. ' ' 

Along  with  this  tax  on  corporations  should  go  a  tax 
on  mortgages  and  all  other  similar  securities  that  are 
not  corporate.  It  would  manifestly  be  the  height  of 
injustice  to  tax  the  stock  of  corporations  and  not  to  do 
the  .same  with  other  competing  forms  of  wealth.  The 
State,  therefore,  if  it  wishes  to  levy  its  taxes  according 
to  any  moral  principle,  will  not  stop  with  a  tax  on  the 


124  '^^^'-^  sphere  of  the  State. 

earnings  of  corporations.  It  will  have  all  other  similar 
securities  contribute  their  share  to  the  support  of  the 
government.  The  people  determine  the  value  of  a 
mortgage  and  the  revenue  to  be  derived  from  it  just 
as  truly  as  they  do  the  value  of  a  railroad  or  horse-car. 
And  just  as  they  have  a  right  to  take,  in  their  corporate  \ 
capacity  as  a  State,  a  portion  of  the  net  receipts  of  the 
one  for  the  public  revenue,  so  they  have  a  right  to  take 
for  the  same  purpose  a  portion  of  the  profits  of  the 
other. 

While  the  chief  source  of  revenue  for  the  modern 
State  should  be  the  stock  of  corporations,  mortgages, 
and  similar  securities,  they  cannot  justly  be  the  only 
source.  For  individuals  and  firms  owe  their  oppor- 
tunity to  profit  by  their  vocation  to  society  and  are 
therefore  justly  called  upon  to  contribute  their  share  to 
the  needs  of  the  public.  No  man  can  successfully  pur- 
sue any  trade  or  profession  unless  the  people  create  a 
demand  for  his  services,  and  the  greater  the  demand, 
other  things  remaining  the  same,  the  larger  will  be  the 
revenue  received  for  those  services.  Whatever  one  ob- 
tains in  this  way  over  and  above  that  which  is  necessary 
to  maintain  himself  and  his  in  a  healthy  condition  for 
labor  is  properly  subjected  to  taxation  by  the  State. 

It  is  not  our  purpose  to  discuss  the  details  of  taxa- 
tion, but  simply  to  point  out  some  of  the  ethical 
principles  to  be  followed.  But  what  can  be  more  in 
accord  with  justice  in  the  taxation  of  incomes  than  that 
the  larger  income,  other  conditions  remaining  the  same, 
should  contribute  a  relatively  larger  portion  to  the 
needs  of  the  government  ?  While  recognizing  fully  the 
principles  of  progression  in  the  taxation  of  incomes, 
and  approving,  in  the  main,  the  well-known  saying  of 
the  great  French  economist,  J.  B.  Say,  that  "  taxation 


i 


The  State  and  Taxatio7i.  125 

cannot  be  equitable  unless  its  ratio  is  progressive,"  we 
must  also  maintain  that  the  revenue  from  property 
should  be  taxed  at  a  higher  rate  than  the  revenue  from 
personal  eflfort.  For  funded  income  is  far  more  certain 
than  personal  income,  and  not  so  easily  swept  away  by 
some  slight  mishap. 

Another  legitimate  source  of  revenue  for  the  State  is 
a  tax  on  gifts  and  inheritances.  Such  a  tax  is  in  no 
sense  a  confiscation.  For  the  receiver's  ability  to  pay 
taxes  is  suddenly  and  through  no  eflfort  of  his  own 
greatly  increased,  and  the  State,  allowing  and  defend- 
ing the  transfer,  has  a  right  to  a  share  of  the  benefit. 
Nearly  every  civilized  country  in  the  world  now  has 
an  inheritance  tax  as  a  part  of  its  fiscal  system.  In 
France  or  Italy  the  tax  on  Jay  Gould's  estate  would 
have  amounted  to  about  a  million  dollars  ;  in  England 
to  nearly  three  millions  ;  and  in  Canada  or  Australia 
to  over  three  and  a  half  millions.  "Of  all  forms  of 
taxation,"  writes  Mr.  Carnegie,  "this  seems  the  wisest. 
Men  who  continue  hoarding  great  sums  all  their  lives, 
the  proper  use  of  which  for  public  ends  would  work 
good  to  the  community,  should  be  made  to  feel  that  the 
community,  in  the  form  of  the  State,  cannot  be  deprived 
of  its  just  share.  By  taxing  estates  heavily  at  death 
the  State  marks  its  condemnation  of  the  selfish  million- 
naire's  unworthy  life. ' '  The  application  of  a  progressive 
system  of  taxation  to  inheritances  is  most  reasonable 
and  just.  The  proposal  to  put  a  two  per  cent,  tax  on 
estates  above  $100,000,  three  per  cent,  on  estates  above 
$500,000,  five  per  cent,  on  estates  above  $1,000,000,  and 
a  much  higher  tax  on  larger  estates,  should  speedily  be 
enacted  into  a  law.  It  would  in  no  wise  discourage 
industry  and  enterprise,  is  easily  collected  and  paid, 
and  would  provide  with  the  least  friction  a  very  large 


126  The  Sphere  of  the  State. 


part  of  the  revenues  of  the  State.  It  is  by  no  means  an 
accident  that  this  tax  finds  its  highest  development  in 
such  countries  as  England.  Switzerland,  and  Australia, 
the  most  democratic  of  the  world. 

With  the  view  of  taxation  already  taken  distinctly 
before  us,  we  are  prepared  properl}'  to  consider  some 
of  the  important  phases  of  our  subject  that  hitherto  we 
have  failed  to  notice.  And  first  the  doctrine  of  the 
"diffusion  of  taxes."  "  A  tax,"  says  Thiers,  "  which 
at  first  sight  appears  to  be  paid  directly,  in  reality  is 
only  advanced  by  the  individual  who  is  first  called 
upon  to  pay  it."  lyord  Mansfield  advocated  the  same 
doctrine  in  his  speech  on  taxing  the  colonies  :  "  I  hold 
it  to  be  true,"  he  says,  "  that  a  tax  laid  in  any  place  is 
like  a  pebble  falling  into  and  making  a  circle  in  a  lake, 
till  one  circle  produces  and  gives  motion  to  another, 
and  the  whole  circumference  is  agitated  from  the 
centre. ' ' 

If  this  were  a  true  doctrine  it  would  matter  but  little 
from  what  source  the  State  derived  its  revenue.  Any 
article  of  consumption  might  be  selected  to  pay  the 
tax,  and  still  each  person  in  the  State  would  contribute 
according  to  his  ability  to  the  support  of  the  govern- 
ment. But  as  a  matter  of  fact,  the  condition  of  an 
absolute  and  unlimited  competition  that  it  presupposes 
does  not  exist  and  can  not  exist,  at  least  so  long  as 
men  remain  finite.  So  far  as  there  is  the  slightest 
ignorance  of  the  best  market,  or  inability  to  reach  it, 
or  fear,  or  superstition,  or  unwillingness  to  put  forth 
the  eflfort  to  shift  the  burden  on  to  the  shoulders  of 
those  who  ought  to  bear  it ;  and  also  so  far  as  there 
exists  the  slightest  inclination  in  any  portion  of  the 
community  to  resist  this  diffusion,  the  tax  will  tend  to 
stay  where  it  is  first  levied.     These  obstacles  to  difiu- 


J 


The  State  and  Taxation.  127 


sion  should  not  be  underestimated.  Any  legislator 
who  thinks  it  is  a  matter  of  indifference  where  and 
when  and  how  taxes  are  imposed,  could  hardly  be  in 
greater  error.  He  is  as  truly  bound  to  consider  the 
ultimate  effects  of  a  projected  tax  as  the  immediate 
effects.  To  ignore  these  effects  is  not  only  to  disregard 
the  equities  of  contribution,  but  to  leave  out  of  consider- 
ation the  general  interests   of  trade  and   production. 

Any  single-tax  theory,  whatever  the  object  taxed, 
has  over  against  it  all  the  objections  to  this  doctrine  of 
the  diffusion  of  taxes.  It  is  untrue  to  human  nature. 
It  assumes  a  condition  of  things  that  never  has  been 
and  never  can  be  a  reality.  Free  competition  anywhere 
in  human  affairs  is  a  product  of  the  fancy,  not  a  fact,  and 
never  can  be.  For  a  government  to  base  its  require- 
ments on  absolute  competition  is  to  treat  man  as  so 
many  cubic  feet  of  matter,  or  to  assume  that  he  pos- 
sesses divine  powers.  In  either  case  the  question  of 
taxation  would,  of  course,  be  shut  out  altogether. 

A  single  tax  on  land  is  open  to  all  the  objections 
arising  from  the  application  of  this  diffusion  theory  of 
taxation,  and,  in  addition,  to  all  the  objections  pre- 
sented above  to  making  property  the  basis  for  deter- 
mining the  portion  each  person  should  contribute  to 
the  needs  of  the  government. 

Another  question  much  discussed  by  economists  is 
whether  taxation  should  be  direct  or  indirect.  The 
ultimate  ethical  principle  that  each  person  should  sup- 
port the  government  according  to  his  revenue,  plainly 
teaches  us  that  all  taxation  should  ultimately  be  direct, 
and  every  State  should  be  looking  forward  to  the  time 
when  it  shall  be  obliged  to  levy  no  other.  Ferdinand 
L,assalle,  in  his  Indirect  Taxation,  and  the  Condition 
of  the   Working  Classes,     undoubtedly  exaggerates  to 


128  The  sphere  of  the  State. 

some  extent  the  burdens  that  indirect  taxation  has 
rolled  upon  the  shoulders  of  the  working  classes,  but 
in  a  large  degree  the  impeachment  of  the  system  is 
justified  by  history.  For  centuries  extravagant  mon- 
archs  have  resorted  again  and  again  to  some  tax  upon 
the  necessities  of  life  to  replete  their  exhausted  treasu- 
ries. If  the  system  of  taxation  outlined  above  for  the 
modern  State  be  correct,  the  only  way  to  bring  it  about 
that  all  classes  shall  bear  their  share  of  public  burdens 
is  by  a  direct  tax  on  revenues.  The  time  may  be  far 
distant  when  the  sj^stem  will  reach  its  true  fruition. 
Still  all  should  be  done  that  can  be  done  under  given 
conditions  and  limitations  for  the  attainment  of  that 
end,  "  For  one,  I  do  not  deem  it  unreasonable,"  says 
President  Walker,  in  speaking  of  the  evils  of  the 
present  method  in  its  effects  upon  the  working  classes, 
' '  to  look  forw^ard  to  the  time  when  through  the  instruc- 
tion of  our  children  in  civics,  ethics,  and  economics, 
and  through  the  long-continued  enjoyment  of  political 
franchises,  government  shall  be  found,  immediately 
subject  to  popular  control,  which  shall  yet  be  able  to 
collect  by  direct  assessment  and  exaction  that  tenth  or 
that  fifth  part  of  the  laborer's  wages  which  is  now  con- 
veyed away  from  him  by  disguised  imposts  upon  the 
decencies,  comforts,  and  luxuries  of  life." 

It  must  be  allowed,  however,  that  under  present  con- 
ditions the  people  desire  to  pay  their  taxes  in  what 
Gustav  Cohn  calls  ' '  a  state  of  unconsciousness. ' '  So 
long  as  they  regard  the  paying  of  taxes  as  a  burden 
gladly  avoided  and  not  as  a  duty  joyfully  performed, 
it  will  be  politically  wise  to  let  them  mitigate  the 
pangs  of  the  operation  with  the  ' '  drowsy  vapor  ' '  of 
highly  taxed  tobacco  and  the  "  exhilarating  stimulus  " 
of  highly  taxed  wine,  just  as  they  assuage  the  ex- 


The  State  and  Taxation.  129 

cruciating  pains  of  the  surgeon's  knife  with  a  liberal 
draft  of  laughing-gas  or  some  other  powerful  anaesthetic. 

In  our  country  much  of  the  injustice  regarding  tax- 
ation arises  from  the  fact  that  the  national  government 
has  its  own  system  of  levying  taxes,  the  separate 
commonwealths  have  theirs,  and  the  localities  theirs. 
Nothing  but  confusion  and  chaos  can  result  from  such 
a  method,  and  the  only  way  to  proceed  rationally  in 
the  matter  is  to  have  the  central  government  make  one 
and  the  same  system  obligatory  upon  all,  leaving  the 
execution  of  the  system  for  national  purposes  to  the 
nation,  for  commonwealth  purposes  to  the  common- 
wealth, and  for  local  purposes  to  the  locality.  It  is  hard 
to  see  how  any  just  and  equitable  results  can  be 
attained  in  any  other  manner. 

This  position,  however,  does  not  necessitate  that  the 
system  for  local  taxation  should  be  identical  with  that 
for  the  State.  On  the  contrary  there  is  good  reason 
for  holding  that  they  should  greatly  differ.  For  the 
maxim  of  the  old  economists,  that  "  taxes  are  a  com- 
'pensation  for  protection,"  while  not  true  at  all  of  the 
State,  is  true,  to  a  large  extent  at  least,  of  the  locality. 
All  tangible  property  of  every  kind  is  benefited  in  a  pecu- 
liar sense  by  the  action  of  the  local  authorities.  If  the 
streets  are  well  lighted,  the  police  efficient,  the  schools 
of  a  high  grade  of  excellence,  the  sewerage  and  the  roads 
are  kept  in  a  good  condition,  all  the  visible  property 
of  the  neighborhood  is  made  more  valuable  thereby.  It 
is  eminently  proper,  therefore,  that  the  property  of  the 
locality  should  pay  the  local  tax  irrespective  of  annual 
product.  For  the  test  is  not  the  ability  of  the  owner  to 
pay,  but  the  expense  the  protection  of  his  property 
occasions  the  locality  and  the  benefit  his  property 
receives  from  such  expenditure. 


136  The  Sphere  of  the  State. 


From  the  view  of  the  State  advanced  in  these  pages, 
it  is  easy  to  see  how  unnecessary  and  useless — not  to 
say  unjust  — it  would  be  to  levy  taxes  on  all  corpora- 
tions within  the  State,  irrespective  of  their  end  or 
purpose.  Charitable,  educational,  and  religious  corpo- 
rations are  doing  directly  the  work  of  the  State.  They 
are  acting  for  the  State,  doing  what  the  government 
would  otherwise  be  obliged  to  do  by  its  own  direct 
effort.  The  State  allows  them  to  exist  for  that  reason. 
If  they  fail  to  do  this  work  better  than  it  could  be  done 
by  the  government,  or  at  least  as  well,  they  should  at 
once  be  suppressed  and  the  funds  they  have  been 
allowed  to  accumulate  devoted  by  the  State  to  some 
other  purpose.  For  the  government,  after  it  has  once 
given  them  its  sanction,  to  impose  upon  them  a  tax,  or 
in  any  way  fail  to  foster  and  encourage  their  under- 
takings, is  to  belie  its  own  action  and  justly  bring  upon 
itself  the  reproach  and  contempt  of  all  its  subjects. 

Of  course  we  do  not  advocate  any  sudden  revolution 
in  the  present  methods  of  taxation.  We  have  endeav- 
ored in  this  chapter  on  the  relation  of  the  State  to  taxa- 
tion simply  to  present  a  general  plan  of  taxation  that 
we  think  will  bring  the  ethical  demands  of  the  case  into 
harmony  with  modern  economic  facts.  The  details  of 
application  we  intentionally  leave  in  the  hands  of 
experts  who  make  such  matters  a  special  study.  We 
have  referred  to  existing  systems  only  by  way  of  illus- 
tration, or  contrast,  our  object  being  rather  to  present 
an  ideal  to  be  realized  by  every  State  as  rapidly  as  its 
own  conditions  and  limitations  warrant.  We  do  not 
advocate  or  desire  a  sudden  and  radical  upheaval  of 
present  methods.  Our  central  government  may  wisely, 
for  the  present,  continue  to  obtain  its  revenue  largely 
from  customs  and  duties.  But  the  commonwealths  can 


The  State  and  Taxation.  131 

speedily  abolish  their  tax  on  real  estate  and  meet  their 
expenditures  by  a  tax  on  corporations  and  inheritances, 
and  the  localities  can  be  left  to  look  to  real  estate  alone 
to  meet  the  demands  upon  their  treasuries.  The  other 
requirements  of  an  equal  and  just  system  of  taxation 
we  should  strive  to  attain  later.  Undoubtedly  there 
exists  in  our  country  at  present  a  strong  prejudice 
against  an  income  tax  of  any  sort  and  a  decided  unwill- 
ingness to  give  it  a  fair  trial.  It  is  evidently  unwise 
to  urge  its  immediate  adoption.  It  will  come,  however, 
in  time,  as  it  has  already  done  in  all  other  civilized 
lands.  For,  rightly  administered,  it  is  the  most  equi- 
table of  all  modes  of  taxation,  as  well  as  the  easiest  to 
understand  and  the  simplest  to  put  into  execution. 

While  we  strenuously  insist  that  all  taxation  is  upon 
persons  and  that  ability  to  pay  should  always  be  the 
basis  upon  which  they  should  be  required  to  support  the 
government,  we  would  not  lose  sight  of  the  fact  that 
the  person  taxed  is  as  truly  an  end  of  taxation 
as  a  means.  No  taxation  can  be  a  just  taxation 
that  is  not  determined  by  what  is  due  to  the  tax-payer 
as  well  as  by  what  he  owes  to  the  body-politic.  Every 
effort  should  be  made  by  the  government  to  have  its 
taxes  so  appointed  that  each  and  every  member  of  the 
State  shall  be  duly  benefited  thereby.  No  tax,  there- 
fore, should  be  levied  except  under  due  process  of  law. 
The  entire  procedure  of  assessing  and  collecting  any  tax 
should  always  be  open  to  the  inspection  of  the  public. 
The  government  should  always  make  its  law  clear  and 
definite  and  help  the  tax-payer  in  every  way  it  can  to 
meet  its  demands  in  the  easiest  possible  manner.  To 
this  end  "he  should  not  be  liable  to  any  sudden  sur- 
prises ;  he  should  not  be  singled  out  with  any  dispro- 
portionate requirement;  he  should  know  just  what  is 


X^^  The  Sphere  of  the  State. 


expected  from  liim,  and  when  and  why.  And  all  this 
requires  that  the  whole  method  of  taxation  shall  not 
only  be  carefully  considered  by  the  government,  but 
should  proceed  upon  definitely  stated  laws.  A  person's 
ability  to  pay  taxes  is  in  part  proportioned  to  the  clear- 
ness and  precision  with  which  the  laws  respecting 
taxation  are  stated  and  followed." 


CHAPTER  VIII. 

THE  STATE  IN  ITS  RELATION  TO  MONEY. 

ThoroIvD  Rogers  has  well  said  that  "just  as  the 
development  of  language  is  essential  to  the  intellectual 
growth  of  a  people,  so  is  a  medium  of  exchange  to 
civihzation."  Without  going  so  far  as  to  say  with 
Aristotle  that  money  ' '  exists  not  by  nature  but  by 
law,"  we  may  safely  affirm  that  it  is  wellnigh  impos- 
sible to  overestimate  the  influence  that  every  civilized 
government  has  in  imparting  acceptability  to  money, 
and  in  making  it  effective  for  the  payment  of  debts  and 
the  purchase  of  commodities. 

Thomas  Baring  is  responsible  for  the  assertion  that 
it  was  impossible  to  raise  any  money  whatever 
<on  a  sum  of  ^60,000  of  silver  during  the 
crisis  in  I^ondon  in  1847.  The  same  difficulty  was 
experienced  in  Calcutta  in  1864  with  ^20,000  of  gold. 
The  reason  in  the  former  case  was  that  silver  was  not 
a  legal  tender  in  I^ondon  for  any  sum  above  forty  shil- 
lings, and  in  the  latter  case  gold  was  not  a  legal  tender 
in  Calcutta  for  any  sum  whatever. 

No  people  have  yet  been  found  so  low  as  not  to  have 
some  kind  of  money,  and  almost  every  known  sub- 
stance has  been  used  for  that  purpose.  In  1851 
more  than  1000  tons  of  cowry  shells  were  brought 
from  India  to  Liverpool  to  be  exported  to  Africa  in 

133 


134  ^'^^^'  Sphere  of  the  Si  ate. 

exchange  for  palm  oil.  In  parts  of  China  pieces  of 
silk  pass  for  money.  In  Abyssinia  rock  salt  is  used  for 
mone}^  and  in  Iceland  dried  codfish  serves  the  same 
purpose.  When  Europeans  first  came  to  America 
cocoa-nuts  were  used  for  money  in  many  parts  of  the 
country,  and  the  skins  of  wild  animals  in  others. 
About  1635  wampum  was  a  legal  tender  among  the 
colonists  of  Massachusetts  and  counterfeiters  gave 
them  much  trouble.  Musket  balls  were  also  a  legal 
tender  among  them  for  sums  under  one  shilling.  For 
many  years  the  early  settlers  of  Maryland  and  Virginia 
used  tobacco  as  money,  and  later  it  was  made  legal 
money.  The  fees  and  salaries  of  government  officers 
were  paid  in  it,  and  the  public  taxes  were  collected  in 
the  same  article.  Certain  fees  of  court  officers  in  the 
District  of  Columbia  are  computed  in  tobacco  money 
to  this  day.  Chavelier  tells  us  that  hand-made  nails 
were  used  for  money  as  late  as  1866  in  some  of  the 
more  secluded  villages  of  France.  "  In  the  British 
West  India  Islands,"  writes  Mr.  Madden,  "pins,  a 
slice  of  bread,  a  pinch  of  snuff,  a  dram  of  whiskey,  and 
in  the  central  part  of  South  America  soap,  chocolate, 
cocoa-nuts,  eggs,"  etc.,  are  used  as  a  medium  of  ex- 
change. Among  the  ancient  Greeks  and  Romans 
cattle  were  used  for  money.  We  get  our  word 
pecuniary  from  that  fact.  Tin  was  coined  by  Dio- 
nysius  I.,  tyrant  of  Syracuse,  and  Roman  and  British  tin 
coins  are  known  to  exist.  L,ead  was  early  used  for 
money,  and  is  now  so  used  in  the  Burman  empire. 
The  Carthaginians  had  a  kind  of  leather  money.  The 
Bmperor  Frederick  Barbarossa  also  used  leather,  and  so 
did  the  French  king,  John  the  Good,  in  1360.  When 
Nicolo  and  Matteo  Polo  visited  China  in  the  thirteenth 
century  they  found   money  in  use  there  made  of  the 


The  State  in  its  Relation  to  Money.       135 

middle  bark  of  the  mulberry  tree,  cut  into  round 
pieces  and  stamped  with  the  mark  of  the  sovereign. 
It  was  death  to  counterfeit  or  refuse  to  take  this  money 
in  any  part  of  the  empire.  At  the  time  of  the  Norman 
conquest  the  English  were  using  two  kinds  of  money, 
known  as  "  dead  money  "  and  "  living  money."  The 
one  consisted  of  slaves  and  cattle  ;  the  other  of  metal. 
When  Europeans  first  began  to  trade  with  the  South 
Sea  Islanders  they  would  accept  beads  or  anything 
else  of  a  gaudy  character  for  their  products,  but  as  soon 
as  the}'  learned  the  use  of  axes,  axes  became  the  stand- 
ard of  payment  and  the  basis  of  accounts.  Although 
nearly  all  the  civilized  nations  of  to-day  limit  their 
supply  of  monej'  to  gold  and  silver,  Russia  in  1828 
coined  platinum  into  money.  But  the  great  difficulty 
of  rendering  the  metal  from  ingots  into  coin  and  from 
coin  into  ingots  caused  it  to  be  abandoned  in  1845. 

From  this  brief  survey  of  the  historical  forms  of 
money  it  is  evident  that  almost  anything  can  be  used 
for  money.  But  it  is  also  clear  that  some  substances 
are  immensely  superior  to  others  for  that  purpose.  As 
nations  have  advanced  in  civilization  they  have  dimin- 
ished the  number  of  objects  they  use  for  money  and 
increased  the  quality.  No  function  of  the  government 
can  be  more  important  to  the  welfare  of  a  people  than 
that  of  determining  what  shall  be  the  recognized 
medium  of  exchange.  It  is  one  of  the  first  steps  out  of 
savagery  into  civilization.  Trade  could  hardly  go 
beyond  the  limits  of  personal  barter  without  such  a 
medium,  and  there  could  be  little  or  no  commerce 
between  States. 

It  is  plainly  the  duty  of  the  civilized  nations  of  the 
earth  to  select  as  the  basis  of  exchange  and  standard  of 
value  for  our  day  the  precious  metals,  for  they  possess 


1 36  The  SpJierc  of  the  State. 

above  all  other  known  objects  the  requisite  qualities 
for  such  a  purpose,  i .  They  concentrate  much  value 
in  little  weight.  This  makes  them  easily  portable,  in 
marked  contrast  with  bars  of  iron,  skins  of  wild  beasts, 
and  sheep  or  cattle.  2.  They  may  be  divided  up  to 
any  extent  desired  without  loss  or  damage.  Skins, 
precious  stones,  and  many  other  articles  would  be 
almost  ruined  by  such  division.  3.  They  are  among 
the  most  durable  of  substances.  Iron  rusts,  cattle  die, 
but  these  metals  are  unaffected  by  the  changes  of  the 
atmosphere  or  the  lapse  of  time.  4.  They  are  easily 
fusible  and  when  coined  they  are  always  of  the  same 
quality.  There  can  be  good  tobacco  and  poor  tobacco, 
good  sheep  and  poor  sheep,  but  no  such  thing  as  good 
and  bad  gold  or  silver.  When  cows  were  accepted  for 
taxes  in  Massachusetts  the  treasury  very  quickly  be- 
came possessed  of  all  the  scrawny  cattle  in  the  colony. 
The  tax-gatherers  received  no  others.  5.  They  vary 
little  in  value  from  generation  to  generation.  This  is 
not  so  with  corn  or  cattle.  This  requisite  is  of  great 
►  importance  in  a  state  of  society  where  deferred  pay- 
ments have  become  a  prominent  feature  of  industrial 
life. 

In  view  of  these  advantages  ever>'  civilized  nation  in 
our  day  ought  to  select  the  precious  metals  as  its  basis 
for  money.  Yet  it  is  not  necessary  or  desirable  for  a 
people  to  coin  all  the  gold  and  silver  that  it  uses  for 
money.  As  a  matter  of  fact,  as  the  world  advances  in 
civilization  the  actual  handling  of  the  precious  metals 
tends  to  diminish  rather  than  increase.  It  would  im- 
mensely impede  the  transaction  of  business  if  the 
people  were  always  obliged  to  take  the  actual  coin. 
When  our  national  government  coins  gold  and  silver 
dollars  the  principal  part  of  the  product  is  stacked  up 


The  State  in  its  Relatio7i  to  Money.       1 3  7 


in  the  Treasury  and  certificates  are  issued  for  them 
which  soon  pass  into  the  hands  of  the  people.  Only 
about  one  eighth  of  the  coined  silver  dollars  are  bodily 
in  circulation.  As  the  expense  of  coining  each  one 
hundred  million  of  silver  dollars  is  at  least  two  millions, 
and  as  the  silver  bullion  itself  is  a  better  security  than 
the  silver  coin,  there  is  every  reason  for  approving  the 
position  taken  by  Secretary  Foster  that  we  should 
issue  certificates  for  the  bullion  and  save  the  trouble 
and  expense  of  coinage.  "Of  course  I  mean,"  he 
says,  "  that  we  shall  coin  all  the  gold  and  silver  that 
our  people  may  desire  to  use,  but  beyond  that,  for  my 
own  part,  I  do  not  see  any  necessity  for  coinage. ' ' 

This  policy  is  now  actually  pursued  by  our  govern- 
ment. President  Harrison,  in  his  message  to  the 
Fifty-second  Congress,  in  speaking  of  the  results  of  the 
legislation  on  silver,  says  :  ' '  Nor  should  it  be  forgotten 
that  for  every  dollar  of  these  notes  issued  a  full  dollar's 
worth  of  silver  bullion  is  at  the  same  time  deposited  in 
the  Treasury  as  a  security  for  its  redemption." 

It  by  no  means  follows  from  the  view  taken  above 
concerning  the  precious  metals  that  they  alone  consti- 
tute wealth.  A  nation  might  possess  a  great  abun- 
dance of  these  metals  and  still  not  be  rich.  It  might 
have  its  coffers  full  of  specie  and  be  in  great  need  of  the 
necessities  of  life.  Wealth  consists  not  in  money  alone, 
but  in  an  abundances  of  commodities,  and  no  amount 
of  money  would  be  of  much  value  unless  it  could  be 
freely  exchanged  for  commodities.  The  nation,  there- 
fore, that  prohibits  the  exportation  of  money  works  its 
own  ruin.  One  of  the  chief  causes  of  the  overthrow  of 
Spain  as  a  great  political  power  was  the  adoption  of 
this  error.  As  the  first  receiver  of  the  American  pro- 
duction of  these  metals  she  tried  by  heavy  duties  and 


138  The  sphere  of  the  State. 


prohibitions  to  keep  them  to  herself.  No  trade  was 
allowed  with  outside  nations  unless  it  resulted  in  the 
importation  of  money.  The  other  European  powers, 
following  her  example,  acted  on  the  same  theory,  and 
all  the  evils  of  the  well-known  Mercantile  System  were 
experienced  for  a  century.  No  one  was  allowed  to 
import  goods  in  ships  not  belonging  to  the  importing 
country,  for  otherwise  money  would  have  to  be  paid  to 
foreigners  for  this  service.  Colonies  were  excluded  from 
all  trade  except  with  the  mother  country  for  the  same 
reason.  It  was  not  until  this  mercantile  theory  had 
been  exploded  by  hard  experience  that  the  way  was 
opened  for  the  wonderful  progress  that  has  character- 
ized modern  industrial  life. 

But  granting  that  a  nation  has  made  the  precious 
metals,  or  one  of  them,  its  medium  of  exchange,  it  need 
not  on  that  account  alone  limit  its  money  circulation 
to  the  amount  of  specie  it  possesses  or  to  certificates 
representing  that  specie.  If  it  abounds  in  other  commo- 
dities, its  own  credit  may  be  made  the  basis  of  a  further 
issue  of  certificates  and  the  sum-total  of  its  money  be 
greatly  increased  thereby.  Perhaps  the  best  illustration 
of  this  statement  is  the  Bank  of  England.  It  is  allowed 
by  the  government  to  issue  notes  not  only  on  its  specie 
reserve,  but  also  in  the  constant  sum  of  /"is, 000,000 
without  any  specie  whatever,  and  no  one  hesitates  to 
accept  these  notes  for  their  face  value  in  any  part  of 
the  civilized  world.  The  credit  of  a  rich  and  trust- 
worthy nation  is  at  their  back.  They  therefore  circu- 
late, although  made  of  paper,  on  an  equality  with  the 
actual  coin. 

Mere  fiiat  money  could  not  bring  about  such  a  state 
of  affairs.  Between  the  years  1744  and  1759  the  paper 
currency  of  Rhode  Island  depreciated  to  such  an  extent 


The  State  in  its  Relation  to  Money.       139 


that  in  the  latter  year  ;^  100  sterling  cost  ;^2300,  and 
in  January,  1781,  one  dollar  of  the  paper  currency  that 
had  been  issued  by  our  Continental  Congress  was  worth 
only  a  cent  in  coin,  and  by  May  of  the  same  year  less 
than  three  mills.  Hence  the  by-word  of  our  day  : 
"Not  worth  a  continental." 

The  two  kinds  of  paper  money  that  can  be  issued  by 
a  government  are  convertible  and  inconvertible  ;  or,  as 
they  are  sometimes  called  redeemable  and  irredeemable. 
Paper  money  is  convertible  if  its  full  immediate  and 
unconditional  redemption  in  coin  is  at  all  times  within 
the  choice  of  the  holder ;  all  other  paper  money  is  in- 
convertible. The  present  paper  money  of  most  of  the 
northern  nations  of  Europe  and  the  Treasury  notes  of 
the  United  States  are  good  examples  of  the  former  ; 
and  the  present  paper  money  of  the  southern  nations  of 
Europe  except  France,  the  mandates  of  the  French 
Revolution,  our  Continental  currency  already  referred 
to,  the  Confederate  notes,  and  the  notes  of  the  Bank 
of  France  during  the  Franco-Prussian  war  are  good 
examples  of  the  latter. 

As  to  the  character  of  convertible  paper  money  there 
can  be  no  question.  Being  immediately  redeemable  in 
coin,  it  can  serve  all  the  purposes  of  money  as  well  as 
coin  and  in  many  respects  much  better.  But  what  of 
inconvertible  paper  money  ?  Can  it  ever  be  good 
money  ?  Can  it  ever  be  made  to  circulate  on  an  equality 
with  coin  ?  That  depends  on  the  amount  of  money- 
work  to  be  done  and  the  amount  of  money-force  already 
in  existence  with  which  to  do  it.  The  amount  of  money- 
work  is  determined  by  the  amount  of  exchange  required 
to  carry  on  the  business  of  the  country.  And  the  money- 
force  is  determined  by  the  amount  of  money  in  circula- 
tion  and   the   rapidity    of  that   circulation.        If  the 


140  The  Sphere  of  the  State. 


money-work  increases,  other  things  remaining  the 
same,  the  money  supply  must  be  increased  if  prices  are 
not  to  be  greatly  advanced.  And  the  money  supply 
can  be  and  often  has  been  increased  by  inconvertible 
paper  money  which  has  circulated  on  a  par  with  the 
actual  coin. 

Depression  does  not  necessarily  result  from  inconver- 
tibility, but  from  excessive  issues.  It  might  result 
from  an  over-issue  of  coin  as  well  as  of  inconvertible 
paper  money.  Suppose  $100,000  in  gold  represented 
the  value  of  all  the  commodities  in  a  given  community 
and  the  amount  of  gold  to  be  increased  to  $200,000. 
Then  it  would  take  two  gold  dollars  to  purchase  what 
one  purchased  before.  ' '  There  can  be  no  depreciation 
of  money,"  says  Ricardo,  "  but  from  excess.  However 
debased  (by  seigniorage)  a  coinage  may  become,  it  will 
preserve  its  mint  value — that  is  to  say,  it  will  pass  in 
circulation  for  the  value  of  the  bullion  which  it  ought 
to  contain,  provided  it  be  not  in  too  great  abundance." 
This  assertion  is  equally  true  of  inconvertible  paper 
money.  For  it  is  practically  debased  coin  with  the 
seigniorage  carried  to  one  hundred  per  cent. 

Granting,  then,  that  inconvertible  paper  money  may 
for  a  time  be  good  money,  is  it  safe  or  wise  for  a  nation 
to  resort  to  it  as  a  means  for  increasing  its  money  sup- 
ply ?  We  answer  unhesitatingly,  no.  The  evil  results 
of  such  a  method  of  supplying  the  demand  for  money 
far  outweighs  any  supposed  temporary  benefit.  It  has 
usually  led,  and  probably  will  lead,  not  only  to  gross 
injustice  to  large  numbers  of  individuals,  but  to  indus- 
trial disasters  of  the  most  appalling  sort.  When  once 
a  people  begins  the  process  of  making  money  of  prac- 
tically no  cost  take  the  place  of  money  of  high  cost  it  is 
impossible  to  stop  within  any  reasonable  limit.     All 


The  State  in  its  Relation  to  Money.       141 

the  selfish  interests  of  the  hour  clamor  for  it.  Recog- 
nizing that  the  payment  of  debts  is  a  disagreeable 
necessity,  the  people  persistently  demand  that  they  be 
scaled  down  by  this  method.  Every  new  exigency  in  the 
fiscal  policy  of  the  government  keeps  calling  for  more. 
The  longer  the  regime  continues  the  greater  the  danger 
becomes.  Having  no  international  value  inconvertible 
paper  money  finds  no  outlet  in  international  commerce. 
By  adopting  it  a  countrj^  loses  all  the  advantages  of  an 
automatic  regulation  of  the  money  supply.  An  over- 
issue will  not  flow  away  to  other  countries  as  other 
money  will  that  has  an  inherent  value.  When  the 
system  is  once  adopted  the  danger  from  inflation 
increases  rather  than  diminishes  with  the  lapse  of 
time.  Soon  distrust  sets  in,  trade  is  thrown  into  a 
panic,  and  the  ruinous  results  of  the  system  are  felt  by 
the  whole  people,  and  often  for  many  generations. 
"  It  is  my  firm  belief, "  says  Francis  A.  Walker,  who 
strongly  advocates  the  view  of  inconvertible  paper 
money  taken  above,  "  that  the  issue  of  inconvertible 
paper  money  is  never  a  sound  measure  of  finance,  no 
matter  what  the  stress  of  the  national  exigency  may  be. 
I  believe  it  to  be  as  surely  a  mistaken  policy  as  the 
resort  of  an  athlete  to  the  brandy  bottle.  It  means 
mischief  always.  It  is  to  my  mind  the  highest  proof 
ever  afforded  of  the  supreme  intellectual  greatness  of 
Napoleon,  that  during  twenty  years  of  continuous  war, 
often  single-handed  against  half  the  powers  of  Europe, 
he  never  was  once  drawn  to  this  desperate  and  delusive 
resort. ' ' 

Competent  scholars  tell  us  that  during  our  late  civil 
war  "no  necessity  for  the  issue  of  paper  money  need 
have  arrived."  It  could  easily  have  been  avoided  by 
selling  bonds  at  their  market  value.     Some  of  the  evil 


142  The  Sphere  of  the  State. 

effects  that  resulted  from  the  inevitable  depreciation 
are  given  by  James  lyawrence  lyaughlin  as  follows  :  "(i) 
The  expenses  of  the  government  were  increased  by  the 
rise  in  prices,  so  that  (2)  our  national  debt  became 
hundreds  of  millions  larger  than  it  need  have  been  ;  (3) 
a  vicious  speculation  in  gold  began,  leading  to  the 
unsettling  of  legitimate  trade  and  to  greater  variations 
in  prices  ;  (4)  the  existence  of  depreciated  paper  later 
gave  rise  to  all  the  dishonest  schemes  for  paying  the 
coin  obligations  of  the  United  States  in  cheap  issues  to 
the  ruin  of  its  credit  and  honor  ;  and  (5)  it  has  practi- 
cally become  a  settled  part  of  our  circulation  and  a 
possible  source  of  danger."  That  the  severity  of  the 
panic  of  1873  was  chiefly  due  to  it  there  can  be  no 
reasonable  doubt. 

In  this  discussion  of  the  function  of  paper  money  in  a 
state  we  have  intentionally  avoided  all  reference  to  the 
bank  note.  But  before  we  can  take  up  that  subject  to 
advantage  we  need  to  consider  some  of  the  general 
relations  of  the  government  to  banks.  Every  country 
whose  industrial  organization  has  not  remained  in  the 
most  rudimentary^  state  has  early  made  use  of  the 
service  of  banks.  A  bank  stands  related  to  the  circula- 
tion of  money  as  books  do  to  the  circulation  of  ideas, 
lyike  them  it  does  not  create  what  it  circulates,  yet  its 
existence  is  indispensable  to  a  general  circulation  of 
money.  lyiberal  provision  should  therefore  be  made 
by  every  government  for  the  establishment  of  places 
for  the  safe  deposit  of  money,  for  effecting  the  exchange 
of  money,  and  for  easily  obtaining  the  loan  of  money. 
Modern  banks  may  be  divided  into  two  classes ;  money 
banks  and  credit  banks.  "The  money  bank  was  the 
original  form  of  a  bank  and  that  from  which  the  credit 
bank  was  gradually  developed."     When  the  deposits 


The  State  in  its  Relation  to  Money.       143 

became  loans  the  step  was  taken  from  the  money  bank 
proper  to  the  credit  bank  or  bank  of  issue.  Experience 
shows  that  banks  can  keep  their  promise  to  pay  the 
debt  which  they  incur  when  they  accept  a  deposit  and 
still  loan  out  a  large  part  of  that  deposit.  It  also 
shows  that  if  a  bank  has  properly  invested  its  super- 
fluous capital  and  has  a  large  capital  stock  it  may  issue 
bonds  in  which  the  bank  acknowledges  itself  debtor 
for  the  stated  sum  and  promises  to  pay  it  on  demand 
of  the  presenter.  These  bonds  are  bank  notes.  They 
are  not  metallic  money  or  paper  money  properly  so- 
called.  Yet  they  combine  all  the  convenience  of  paper 
money,  and  to  a  degree  also  its  cheapness  with  the 
stability  of  value  that  characterizes  coin.  Because  of 
these  qualities  the  bank-note  system  was  long  ago 
adopted  by  the  United  States  and  many  of  the  States 
of  Northern  Europe,  and  it  has  largely  contributed  to 
make  them  the  most  wealthy  and  prosperous  nations 
on  the  globe. 

Such  being  the  nature  and  function  of  the  bank  note 
in  the  industrial  economy  of  a  nation,  the  system  that 
is  adopted  for  securing  its  constant  and  immediate  re- 
deemability  in  coin  becomes  a  matter  of  great  moment. 
To  oblige  a  bank  to  base  its  notes,  dollar  for  dollar,  on 
a  cash  reserve  would  be  to  reject  all  that  is  peculiar  to 
modem  banking,  and,  besides,  by  destroying  all  the 
profit,  would  take  away  from  the  bank  all  motive  for 
making  the  issue  at  all.  Equally  objectionable  is  the 
system  of  basing  these  notes  on  real  estate  and  mort- 
gage security,  as  stocks  and  bonds.  For  even  if  they 
afford  a  safe  security,  which  is  often  questionable,  it  is 
difficult,  especially  in  large  quantities,  to  convert  them 
into  cash.  The  only  rational  and  scientific  system  is 
the  so-called  banking  security — a  combination  of  cash 


144  The  Sphere  of  the  State. 


reserve  and  of  securities  easily  convertible  into  cash, 
such  as  discounted  bills  and  lombard  claims.  All 
shares  in  joint-stock  companies  and  speculative  stocks 
of  every  description  should  be  rigorously  excluded 
from  such  security.  This  is  demanded  by  the  nature 
of  the  notes  as  obligations  payable  in  cash  on  detnand. 
Only  on  the  basis  of  quick  and  easy  convertibility  in 
the  loans  can  there  be  any  real  guarantee  that  bank 
mone}'  will  not  degenerate  into  mere  inconvertible 
paper  money  of  little  or  no  real  value,  as  it  has  so  often 
done  in  many  of  the  states  of  the  Union  in  the  past. 

In  order  to  insure  the  country  against  the  dangers 
that  undeniably  surround  all  note  circulation  and  to 
keep  our  bank  money  always  and  everywhere  good 
money,  the  right  to  issue  such  notes  in  our  day  should 
be  granted  exclusively  to  national  banks.  The  con- 
stitution of  the  United  States  provides  that  no  state 
shall  emit  bills  of  credit.  But  it  was  decided  by  the 
Supreme  Court,  in  1836,  that  while  the  state  could  not 
issue  circulating  notes,  it  could  authorize  a  private  cor- 
poration to  do  it,  and  thus  it  came  about  that  in  1861 
the  number  of  state  banks  had  increased  to  1601,  with 
a  capital  of  $429,000,000,  and  "  more  than  ten  thousand 
different  kinds  of  notes  were  in  circulation,  issued  by 
the  authority  of  thirty-four  different  states,  under  more 
than  forty  different  statutes."  The  injury  to  the  busi- 
ness of  the  country  from  such  a  state  of  affairs  is  almost 
beyond  estimate.  In  1859  the  average  cost  of  southern 
and  western  exchange  upon  New  York  was  not  less 
than  I  to  iJ-2  per  cent.  The  report  of  the  comptroller 
of  the  currency  makes  the  amount  of  exchange  drawn 
on  New  York  during  1891,  $7,836,000,000.  If  the  rate 
of  1859  should  be  restored  the  loss  in  exchange  annually 
would  be  over  $100,000,000.     This  leaves  out  of  con- 


The  State  in  its  Relation  to  Money.       145 


sideration  all  other  ports  and  says  nothing  of  the  issue 
of  those  banks  that  would  be  without  any  credit  at  all. 

Now,  under  the  national  bank  system  the  notes  are 
guaranteed  by  the  government.  And  if  the  proceeds 
of  the  United  States  bonds  that  it  requires  the  bank  to 
deposit  in  the  Treasury  as  d  security  for  its  circulation 
be  not  enough  to  reimburse  the  government  for  its  loss, 
it  has  the  first  lien  on  all  the  assets  of  the  bank.  The 
notes  are  receivable  by  the  government  for  all  dues 
except  duties  on  imports,  and  payable  for  all  debts 
except  interest  on  the  public  debt  and  in  the  redemp- 
tion of  national  bank  notes.  A  tax  of  10  per  cent,  on 
the  issue  of  any  private  person  or  state  bank  practically 
excludes  all  other  bank  notes  from  circulation  and 
gives  the  country  the  immense  advantage  of  a  homo- 
geneous currency,  fully  secured,  redeemable  at  one 
common  point,  and  free  from  the  enormous  annual 
waste  of  a  fluctuating  exchange.  To  restore  to  each 
state  the  right  again  to  authorize  the  issue  of  bank 
notes  would  be  to  return  to  the  wildcat  currency  of 
ante-bellum  times.  If  reason  and  experience  teach 
us  anything  on  this  subject,  it  is  that  the  people  of  the 
United  States  should  never  permit,  under  any  circum- 
stances, the  forty-four  different  states  of  our  Union,  or 
any  one  of  them,  to  adopt  so  harmful  a  course.  Some 
modification  of  our  present  system  must,  of  course, 
shortly  be  made.  For  most  of  the  bonds  now  used  as 
the  basis  of  circulation  are  fast  being  redeemed  and  will 
soon  go  out  of  existence  altogether. 

The  plan  recently  submitted  to  Congress  by  that 
eminent  financier,  John  Jay  Knox,  late  comptroller  of 
the  currenc}'^,  seems  to  be  most  rational  and  just.  For 
in  every  way  it  conforms  to  the  four  criteria  of  good 
money  :  that  it  be  safe,  elastic,  convertible  and  uni- 


146  The  Sphere  of  the  State. 

form.  The  plan,  as  stated  by  himself  in  77/*?  Forum 
for  February,  1892,  is  that  national  banks  organized  in 
this  country  should  be  allowed  to  issue  circulation  upon 
75  per  cent  of  their  capital  stock,  A  bank  of  $400,000 
capital  should  have  the  right  to  issue  circulation  to  the 
amount  of  $300,000.  Half  oT  that  circulation  ($150,000) 
would  be  secured  by  gold  or  silver  coin  or  bullion,  or, 
if  you  please,  by  the  public  debt,  until  the  maturity  of 
the  4  per  cents  in  1907.  So  far  the  circulation  would 
be  based  on  security  similar  to  that  of  the  Bank  of 
England,  The  other  portion  of  the  circulation  would 
be  secured  by  a  safety  fund.  The  advantages  of  this 
plan  he  outlines  as  follows  :  "  It  provides,  in  the  first 
place,  an  issue  of  circulation  for  only  three  fourths  of 
the  capital  ;  secondly,  absolute  security  for  50  per  cent, 
of  that  amount ;  and,  thirdly,  a  rapidly  increasing  and 
abundant  safety-fund  as  a  security  for  50  per  cent  of 
the  circulation  ;  and,  finally,  a  pledge  of  all  the  assets 
of  an  insolvent  bank  and  the  individual  liability  of  its 
stockholders  for  the  ultimate  redemption  of  its  notes," 

It  is  undoubtedly  the  duty  of  our  government  to  do 
something  to  supply  the  constantly  increasing  need  of 
money.  The  demand  of  the  West  and  South  for  more 
money  and  less  expensive  money  is  a  perfectly  rational 
demand,  and  the  best  way  to  supply  this  demand  in  a 
rich  and  prosperous  country  like  ours  under  present 
conditions  is  not  by  the  free  coinage  of  silver  or  the 
manufacture  of  inconvertible  paper  money,  but  by  fos- 
tering and  developing  in  some  such  way  as  indicated 
above  the  present  system  of  national  bank  notes. 

In  their  application  to  the  legislature  of  Massachu- 
setts in  18 16  for  an  act  of  incorporation,  the  founders 
of  the  first  savings  bank  in  the  United  States  well 
express  their  purpose  in  these  words  :  "  It  is  not  by  the 


The  State  in  its  Relation  to  Money.       147 

alms  of  the  wealthy  that  the  good  of  the  lower  classes 
can  be  generally  promoted.  By  such  donations  en- 
couragement is  far  oftener  given  to  idleness  and 
hypocrisy  than  aid  to  suffering  worth.  He  is  the  most 
effective  benefactor  to  the  poor  who  encourages  them 
in  habits  of  industry,  sobriety,  and  frugality."  The 
"banks  of  the  poor"  that  have  since  sprung  up  all 
over  the  country  in  furtherance  of  this  end  have  con- 
tributed more  than  can  be  told  to  distribute  property 
among  the  masses  of  the  people,  discourage  pauperism, 
and  sharpen  the  mental  and  moral  powers.  The  little 
weekly  saving  of  labor  can  here  be  converted  into 
capital  and  made  to  produce  a  revenue  as  large  as  is 
consistent  with  safety  of  investment.  And  both  prin- 
ciple and  profit  can  be  drawn  out  for  use  at  stated 
intervals  or  reinvested  as  new  capital  and  go  on  in- 
creasing as  before. 

Thus  it  has  come  about  that  these  savings  institu- 
tions have  grown  in  the  north  Atlantic  states  alone 
from  one  in  1816  with  a  handful  of  depositors  to  over 
600  with  nearly  a  billion  of  deposits,  and  with  a 
number  of  depositors  not  much  less  than  two  and 
a  half  millions,  the  Bowery  Savings  Bank  in  New  York 
City  alone  having  nearly  go, 000  depositors,  and  a  total 
asset  of  $40,000,000.  The  duty  of  the  State  to  exercise 
the  strictest  supervision  over  the  investments  and  prac- 
tices of  these  banks  cannot  be  questioned.  For  the 
depositors  have  no  voice  in  the  management  of  their 
funds  or  in  the  election  of  the  trustees.  The  responsi- 
bility for  their  safe  conduct  is  almost  wholly  with  the 
government.  The  laws  concerning  the  conditions  of 
their  establishment  should  be  plain  and  explicit,  as  well 
as  those  relating  to  the  kind  of  investments  they  shall 
be  allowed  to  make,  and  the  times  and  method  of  their 


148  The  S/)/icrc  of  the  State. 

official  reports.  Full  authority  should  be  invested  in 
superintendents  and  conimissioners  properly  to  admin- 
ister these  laws,  and  severe  penalties  should  be  inflicted 
for  failing  to  exercise  this  authority  in  case  of  need. 
"  The  general  savings-bank  law  of  1875,  with  its  amend- 
ments, in  the  state  of  New  York  is  undoubtedly,"  says  * 
John  P.  Townsend,  a  high  authority  on  this  subject, 
"the  best  in  existence  in  this  country— and  it  would 
be  for  the  interests  of  all  if  this  was  general  in  every 
state. ' ' 

In  our  country,  postal  savings  banks  have  now  become 
a  necessity  and  should  be  at  once  established  by  the 
government.  They  have  been  in  successful  operation  in 
England  since  1861.  In  other  European  countries  also 
they  have  proved  to  be  of  great  benefit.  They  are 
especially  needed  in  small  towns  and  villages  where 
the  patronage  would  be  insufiicient  to  justify  the  estab- 
lishment of  any  other  kind  of  a  bank.  Being  operated 
in  connection  with  the  money-order  department,  their 
administration  would  add  but  little  to  the  present  ex- 
penses of  the  government. 

Penny  savings  banks  in  the  public  schools  should 
also  be  fostered  and  encouraged.  For  the  best  way  to 
cultivate  a  spirit  of  economy  in  a  people  is  to  teach  it 
to  them  in  their  youth.  Every  child  should  early 
learn  by  daily  experience  to  practise  the  well-known 
motto  of  Benjamin  Franklin:  "Save  the  pennies." 
That  the  government  can  help  immensely  towards  the 
accomplishment  of  this  end  through  the  public  school 
is  no  longer  a  question  after  the  decided  success  of  the 
scheme  in  so  many  of  the  most  civilized  quarters  of  the 
earth.  In  no  country  is  its  adoption  more  necessary 
than  in  our  own,  in  order  to  counteract  the  evil  ex- 
ample of  the  luxurious  and  extravagant  modes  of  life 


The  State  i7i  its  Relation  to  Money.       149 

adopted  by  the  mass  of  the  people  the  moment  they 
begin  to  prosper. 

Few  persons  are  aware  of  the  fact  that  until  the 
middle  of  the  sixteenth  century,  the  taking  of  interest 
for  the  use  of  money  was  regarded  by  nearly  all  civilized 
nations  as  a  crime.  This  state  of  affairs  is  said  to  be 
due  to  a  misapplication  of  a  provision  of  the  Mosaic 
code  concerning  the  receipt  of  interest  and  to  a  sen- 
tence in  Aristotle  bearing  on  the  same  point.  To 
John  Calvin  is  ascribed  the  credit  of  first  showing  the 
falsity  of  this  position  and  justifying  the  present  uni- 
versal practice.  For  while  it  is  true,  as  Aristotle  says, 
that  money  does  not  produce  money,  yet  it  may  be 
exchanged  for  those  things  that  do  produce  their  like, 
such  as  wheat  and  com,  or  for  other  things  that  help 
to  increase  wealth.  It  is  therefore  as  morally  right  to 
take  interest  for  its  use  as  to  take  rent  for  land  or 
wages  for  labor. 

England  was  the  first  country  to  adopt  the  new 
views,  and  in  1546  she  passed  her  first  law  allowing  the 
collection  of  interest  for  the  use  of  money  and  fixing 
the  maximum  rate.  This  was  at  first  fixed  at  10  per 
cent.,  was  afterwards  gradually  reduced  to  5  percent., 
and  finally  aboHshed  altogether,  the  payment  for  a 
loan  being  as  much  at  the  option  of  the  parties  as  the 
matter  of  rent.  Massachusetts  long  ago  followed  the 
example  of  England,  and  there  seems  to  be  no  good 
reason  why  every  one  of  our  several  commonwealths 
should  not  do  the  same.  For  we  do  not  live  in  a 
country  where  borrowers  are  generally  persons  in 
financial  distress,  and  where  the  supply  of  money  is  either 
wholly  unknown  or  monopolized  by  a  few  unprincipled 
spirits.  In  the  great  majority  of  cases  in  our  day  those 
who  seek  a  loan  do  it  to  enlarge  their  business   or 


150  TJic  sphere  of  the  State. 

engage  in  some  new  venture  with  the  hope  of  extra 
profit,  and  are  no  more  at  the  mercy  of  the  money-lender 
than  of  those  who  rent  land  or  dwellings. 

P'urthermore,  usury  laws,  however  stringent  they 
may  be,  are  easily  evaded  and  always  have  been  when 
the  inducement  was  a  decidedly  strong  one.  Some  of 
the  ways  of  doing  it  are  summarized  by  anotner  as 
follows  :  "  I.  Fictitious  deposits.  The  bank  scrupu- 
lously respects  the  legal  prescription  of  a  maximum 
rate  of  interest,  but  its  customers  make  up  the  dif- 
ference by  keeping  'a  line  of  deposits.'  2.  Commis- 
sions and  fictitious  exchanges.  Whenever  capital  is  in 
great  demand,  especially  in  times  of  commercial  pres- 
sure, it  is  customary  for  bill  brokers  to  charge  '  com- 
missions'  which  are  really  nothing  but  additional 
interest,  and  for  banks  to  create  fictitious  '  exchange ' 
by  making  notes  payable  in  other  places  and  by  char- 
ging a  percentage  on  the  transfer  of  the  funds,  which 
also  is  disguised  interest.  3.  Another  way  in  which 
the  lender  may  obtain  the  advantage  of  which  the  law 
would  deprive  him  is  by  compelling  the  would-be 
borrower  to  take  the  capital  for  a  longer  term  than 
actually  required." 

The  trade  and  manufacture  of  the  world  in  our  time 
is  carried  on  chiefly  by  means  of  borrowed  capital. 
Notes  are  made  and  paid  by  tens  of  thousands  every 
day.  If  the  usury  laws  were  not  violated  when  a  sud- 
den demand  arose  for  loans,  debtors  would  often, 
through  no  fault  of  their  own,  be  plunged  into  com- 
mercial ruin.  Not  being  able  to  secure  the  needed 
loan  at  the  required  maximum  rate,  they  would  be 
forced  to  sell  their  goods  at  once  almost  without  regard 
to  cost.  Thus  the  effect  of  a  legal  rate  is  to  stop  loans 
at  the  very  time  when  the}^  are  most  essential  to  the 


The  State  in  its  Relation  to  Money.       1 5  i 

business  public.  If  the  government  should  allow  our 
banks  to  adopt  some  such  sliding  scale  as  exists  at  the 
great  banks  of  Europe,  where  the  rate  of  interest  rises 
and  falls  with  the  demand,  the  interests  of  business 
would  be  greath'  furthered  thereb}'.  Already  in  New 
York  the  penalties  have  been  removed  for  exceeding 
the  legal  rate  on  call  loans,  and  the  extreme  fluctua- 
tions in  that  market,  where  the  rate  has  several  times 
in  a  crisis  risen  to  400  or  500  per  cent,  per  annum,  have 
been  greatly  mitigated  by  so  doing. 

The  many  advantages  to  the  trade  and  commerce  of 
the  world  that  would  come  from  an  international 
medium  of  exchange  were  never  more  clearly  seen  or 
fully  realized  than  at  present,  and  many  attempts  have 
been  made  to  bring  about  the  adoption  of  such  a 
standard  ever  since  the  first  international  conference 
on  the  subject  at  Paris  in  1867.  At  that  time, 
although  England  from  18 16  had  used  gold  only  as 
a  legal  tender,  the  nations  of  the  lyatin  Union,  viz., 
France,  Italy,  Belgium,  and  Switzerland,  allowed  the 
unlimited  coinage  of  gold  and  silver  at  the  ratio  of 
i:i5L  This  fact  together  with  the  demand  for  silver 
in  other  European  countries,  the  United  States,  and 
the  far  East,  had  kept  gold  and  silver  always  con- 
vertible at  that  rate.  Soon  after  this  conference,  how- 
ever, Germany  and  the  Scandinavian  Union  changed 
from  a  silver  to  a  gold  standard.  France  immediately 
put  a  limit  upon  the  coinage  of  silver  and  the  United 
States  did  the  same  in  1873.  So  many  other  nations 
have  since  discarded  silver  and  adopted  the  exclusive 
use  of  gold  that  the  value  of  gold  has  continually 
risen  and  the  value  of  silver  has  continually  declined. 
So  that  to-day  gold  stands  related  to  silver  as  1:24 
instead  of  as  formerly  1:15^.    Yet  silver  has  depreciated 


1 5  2  The  Sphere  of  the  State. 


only  lo  per  cent,  as  regards  the  standard  commodities 
it  will  purchase,  while  gold  has  appreciated  from  30  to 
35  per  cent. 

Mr.  Balfour,  in  a  recent  speech  at  Manchester,  well 
defined  the  requirements  of  an  international  currency 
when  he  said  :  ' '  We  require  that  it  shall  be  a  con- 
venient medium  of  exchange  between  different  coun- 
tries, and  we  require  of  it  that  it  shall  be  a  fair  and 
permanent  record  of  obligations  over  long  periods  of 
time."  Those  who  hold  that  gold  alone  fulfils  these 
requirements  argue  that  the  value  of  money  cannot  be 
settled  by  law,  but  is  always  determined  by  the  cost  of 
production  ;  that  if  a  nation  should  try  to  adopt  a 
double  standard,  payments  would  always  be  made  in 
the  cheaper  metal  in  accordance  with  Gresham's  law 
that  "  bad  money  always  drives  out  good  money,"  and 
it  would  practically  have  a  single  standard  ;  that  gold 
fluctuates  in  value  far  less  than  any  other  available 
metal  and  therefore  furnishes  the  most  stable  kind  of 
money  ;  and,  finally,  that  the  most  advanced  and 
powerful  nations  have  already  an  exclusive  gold 
standard  (this  gold  reserve  amounting  to  date  to  over 
$1,500,000,000)  and  cannot  be  persuaded  to  change  to 
any  other. 

To  these  arguments  bimetallists  reply  that  the  State 
very  largely  determines  the  value  of  money.  By  making 
a  substance  a  legal  tender  it  increases  the  demand  for 
that  substance  and  this,  within  certain  limits,  deter- 
mines what  shall  be  its  value  ;  that  the  cost  of  produc- 
tion has  very  little  to  do  with  the  value  of  money,  for 
this  is  determined  by  the  amount  of  money  there  is  with 
which  to  do  the  work  of  money  ;  that  if  gold  and  sil- 
ver at  the  same  fixed  ratio  were  once  the  standard  over 
the  whole  earth  there  would  be  no  such  thing  as  "good 


The  State  iri  its  Relation  to  Mo7iey.       153 

money  "  and  "  bad  money,"  and  Gresham's  law  would 
have  no  application  :  that  gold  and  silver  combined 
would  give  a  greater  stability  of  value  to  money  than 
gold  alone,  as  the  fluctuations  would  extend  over  a 
wider  field  and  those  in  one  metal  would,  to  a  large 
degree,  counteract  those  in  the  other  ;  that  the  pres- 
ent and  prospective  supply  of  gold  does  not  and  cannot 
meet  the  legitimate  demands  for  money  ;  that  if  bimet- 
allism is  not  adopted  prices  must  soon  fall  to  such  an 
extent  as  greatly  to  derange  trade  and  commerce  ;  and 
lastl}^  that  the  desire  of  certain  nations  to  have  an  ex- 
clusive gold  standard  is  chiefly  due  to  the  fact  that 
they  already  possess  the  gold  supply. 

The  possibility  of  bimetallism,  if  all  nations  were 
agreed,  is  now  admitted  by  many  monometallists,  but 
the  probability  of  such  an  agreement,  for  the  present  at 
least,  seems  very  slight.  The  creditor  nations,  such  as 
England,  France,  and  Germany,  naturally  prefer  a  gold 
standard,  and  the  debtor  nations  as  naturally  prefer  a 
bimetallic  standard.  The  conferences  of  1878,  1881, 
and  1 892  have  failed  to  agree  upon  a  common  standard 
chiefly  for  this  reason.  And  the  failure  clearly  teaches 
us  that  we  must,  under  present  conditions,  settle  our 
monetary  policy  for  ourselves  without  the  aid  of  Europe. 
As  a  people  we  belong  to  the  debtor  class.  England 
alone  has  over  $1,000,000,000  invested  within  our 
borders.  It  would  be  a  great  injury  to  debtors — espe- 
cially the  agricultural  classes — and  the  nation  as  a  whole 
for  us  to  join  with  the  nations  of  Northern  Europe  and 
increase  still  further  the  demand  for  gold  which  already 
exceeds  the  supply  of  the  world.  But  we  should  not 
adopt  the  free  coinage  of  silver,  for  that  would  mean 
paying  debts  in  dollars  worth  less  than  those  in  which 
the  debts  were  contracted,  just  as  an  exclusive  gold 


154  "^^^^  Sphere  of  the  State, 

standard  means  paying  them  in  dollars  worth 
more. 

America  can  just  as  properly  give  an  "  artificial 
value  ' '  to  silver  in  favor  of  her  interests  as  England 
can  give  it  to  gold  in  favor  of  hers,  as  Mr.  Gibbs,  ex- 
governor  of  the  Bank  of  England,  has  so  conclusively 
shown. 

The  endeavor  of  our  national  government  should  be 
to  keep  the  purchasing  power  of  these  metals  as  nearly 
uniform  as  possible,  making  such  changes  from  time  to 
time  in  their  ratio  as  the  situation  comes  to  require. 

The  demand  for  silver  is  almost  certain  greatly  to 
increase  even  without  an  international  agreement.  As 
soon  as  India  pays  off  her  English  loans  she  will  absorb 
a  vast  amount  of  the  white  metal.  China  and  the  far 
East  have  no  real  money.  Soon  the  600,000,000  in- 
habitants of  that  region  will  be  calling  for  silver,  and 
no  one  can  estimate  the  amount  that  will  be  needed  in 
Africa  when  that  country  begins  to  yield  to  the  demands 
of  a  civilized  life.  Taking  into  consideration  also  the 
increasing  use  of  silver,  sure  to  come  as  the  South 
American  states  more  fully  develop,  it  is  not  hard  to 
foresee  the  gradual  restoration  of  silver  to  its  old  place 
in  the  currency  of  the  world.  Till  then,  it  is  not  at  all 
probable  that  the  gold-using  nations  of  Northern  Europe 
will  agree  on  any  just  basis  to  remonetize  silver  and 
help  in  that  way  to  establish  a  universal  medium  of  ex- 
change. Meanwhile  the  adoption  of  some  such  plan 
as  that  of  an  international  clearing-house  would  injure 
no  one,  would  be  a  positive  benefit  to  all  classes,  and 
help  on  the  commercial  progress  of  the  world. 


CHAPTER  IX. 

THE  TREATMENT  OP  CRIMINAI^. 

In  the  present  condition  of  affairs,  in  all  lands,  even 
after  everything  has  been  done  that  can  be  done  to  in- 
struct the  people  as  to  what  the  public  good  requires,  we 
always  find  two  classes  :  those  who  conform  their  con- 
duct to  the  demands  of  the  government  and  those  who 
fail  to  conform.  No  government,  therefore,  can  treat  all 
its  subjects  exactly  alike.  It  must  discriminate.  While 
it  freely  bestows  its  privileges  upon  those  who  obey  its 
mandates,  it  cannot  justly  grant  them  to  those  who  do 
not.  Every  disobedient  subject  it  must  deprive,  in 
some  degree  at  least,  of  their  possession  and  use.  Hence 
ever}'  demand  of  the  government  should  be  accompanied 
by  a  penalty  for  non-compliance  with  that  demand. 
A  reward  for  obedience  is  not  necessary,  for  obedience 
is  always  accompanied  by  its  own  reward — that  is,  by  a 
continued  enjoyment  of  the  blessings  of  the  present. 
But  every  person  who  violates  the  conditions  upon 
which  he  was  admitted  into  the  full  fellowship  of  the 
State  should  have  an  appropriate  limit  put  upon  his 
enjoyment  of  that  fellowship. 

Those  whose  inability  to  conform  to  the  requirements 
of  the  government  is  one  of  nature,  not  of  will,  should 
have  their  freedom  of  action  limited  in  accordance  with 
that  fact.     While  the  State  should  do  its  best  to  pre- 

155 


156  The  Sphere  of  the  State. 


vent  the  organism  of  which  they  are  still  members  from 
suffering  any  unnecessary  injury  on  their  account,  it 
should  give  them  all  the  assistance  the  circumstances 
will  allow  in  coming  as  speedily  as  may  be  to  the  nor- 
mal use  and  enjoyment  of  all  their  powers. 

But  a  far  more  difficult  question  for  us  to  answer  is, 
how  shall  a  State  treat  those  who  wilfully  violate  its 
statutes  ?  What  shall  be  done  with  those  who  are  both 
mentally  capable  of  understanding  its  decrees  and 
physically  able  to  conform  to  them,  but  still  as  a  matter 
of  fact  act  directly  counter  to  their  requirements  and 
knowingly  set  the  public  good  at  naught  ?  Four  differ- 
ent theories  of  the  way  to  treat  such  criminals  have 
their  respective  advocates.  For  brevity's  sake  they 
may  be  designated  as  follows  :  i.  The  Punishment 
theory  ;  2.  The  Protection  theory  ;  3.  The  Kxample 
theory ;  and  4.  The  Reformation  theory.  L,et  us 
examine  briefly  each  of  these  theories  and  see  what 
ground  we  have,  if  any,  for  not  accepting  any  one  of 
them  as  an  adequate  solution  of  the  problem  we  have 
under  consideration. 

The  first  theory  claims  that  the  true  way  to  treat 
criminals  is  on  the  principle  of  the  vindication  of  the 
law.  I^et  a  clear  and  definite  penalty  for  non-com- 
pliance accompany  every  statute,  and  let  it  compensate 
as  nearly  as  may  be  for  the  injury  inflicted  by  the  dis- 
obedient act.  Let  the  one  upon  whom  the  penalty 
falls  serve  out  his  time  in  due  form  and  then  return  to 
his  place  in  societ}-,  and  assume  anew  its  rights  and 
duties.  If  the  transgression  is  repeated,  repeat  the 
penalt3^  The  State  has  nothing  to  do  with  anything  but 
the  actual  overt  act.  Even  though  the  State  may  have 
every  reason  to  suppose  that  the  released  criminal,  at 
the  first  opportunity,  will  again  transgress,  yet  it  has  no 


1 


The  Treatment  of  Criminals.  1 5  7 

right  forcibly  to  restrain  him,  even  before  the  twentieth 
transgression,  provided,  of  course,  that  all  previous 
offences  have  had  their  just  recompense.  The  State 
has  done  its  whole  duty  and  reached  the  limit  of  its 
right  when  it  makes  its  statutes  plain  and  its  penalty 
plain,  and  then  in  case  of  non-compliance  impartially 
metes  out  the  retribution  that  it  has  announced  in  its 
decree  as  sure  to  follow. 

Most  of  the  criminal  codes  of  the  world  from  the 
earliest  times  have  been  based  on  this  theory.  That  he 
who  murders  should  himself  suffer  death,  that  he  who 
strikes  another  should  himself  be  struck,  says  ^schylus, 
is  the  most  ancient  of  all  laws.  Some  writers  of  to-day 
in  their  opposition  to  this  theory  go  so  far  as  to  affirm 
that  governments  have  no  right  whatever  to  punish. 
They  assert  that  reason  is  against  it,  and  that  the  Bible 
expressly  aflSrms  that  vengeance  has  been  exclusively 
reserved  to  the  Almighty  and  not  delegated  in  any 
degree  to  human  governments.  They  ignore  the  fact 
that  along  with  the  right  to  rule  necessarily  goes  the 
right  to  punish  ;  that  the  State,  by  the  very  act  of  re- 
quiring its  subjects  to  obey  its  mandates,  is  compelled 
'  to  punish  those  who  refuse  to  do  so.  Even  when  it 
forcibly  reforms  it  punishes. 

They  also  ignore  the  fact  that  the  very  Book  that  ex- 
horts its  readers  to  avenge  not  themselves  on  the  ground 
that  "  Vengeance  is  mine,  I  will  repay,  saith  the  I^ord," 
also  enjoins  upon  them  to  submit  themselves  "unto 
governors,  as  sent  by  him  for  vengeance  upon  evil- 
doers," and  expressly  affirms  the  doctrine  that  the 
ruler  "  is  the  minister  of  God,  and  avenger  for  wrath 
to  him  that  doeth  evil."  The  fact  that  full  and 
adequate  punishment  can  alone  be  inflicted  by  the 
Almighty  does  not  at  all  relieve  the  State  of  treating 


1 58  The  Sphere  of  the  State. 

its  citizens  to  the  best  of  its  ability  according  to  their 
deserts. 

Havelock  Kllis,  in  his  I'ecent  (1890)  able  treatise  on 
The  Criminal,  says  r  "In  France,  in  Germany,  in  Italy, 
in  Belgium,  in  Spain,  in  the  United  States  the  tide  of  s 
criminality  is  becoming  higher,  steadily  and  rapidly." 
Bven  in  England,  where  drunkenness  is  not  a  crime, 
as  well  as  in  the  rest  of  Great  Britain,  statistics  tell  us, 
he  says,  that  "  there  is  a  real  increase,  in  proportion  to 
the  population,  in  the  more  serious  kinds  of  crime.'" 
Fred  H.  Wines,  under  whose  direction  the  statistics  of 
pauperism  and  crime  for  the  United  States  Census  of 
1880  were  gathered,  says  in  a  paper  published  in  1888  : 
"  When  the  last  census  was  taken,  in  1880,  there  were, 
in  all  our  prisons  of  every  grade,  very  nearly  sixty 
thousand  prisoners,  besides  more  than  eleven  thousand 
inmates  of  juvenile  reformatories,  who  are  virtually 
prisoners.  It  is  probable  that  the  next  census  may 
show  a  total  prison  population  of  seventy-five  or  eighty 
thousand  men,  women,  and  children  incarcerated  on 
some  criminal  charge.  [The  census  for  1890  makes 
the  number  79,617.]  These  prisoners,  however,  con-  ^ 
stitute  but  a  fraction  of  the  great  army  of  criminals. 
They  have  been  aptly  compared  to  prisoners  of  war. 
Their  capture  does  not  put  a  stop  to  the  operation  of 
the  army  in  the  field,  whose  number  no  man  knows, 
but  which  is  engaged  in  a  never-ending,  widespread, 
and  more  or  less  thoroughly  organized  attack  upon 
property  and  social  order  and  security." 

Allowing  with  some  penologists  that  the  increase  in 
crime  is  in  some  respects  more  apparent  than  real,  yet 
with  these  facts  before  us  is  it  not  clear  that  the  theory 
of  the  vindication  of  the  law  does  not  and  cannot  re- 
duce crime  to  the  minimum  ?     Is  it  not  also  clear,  there- 


The  Treatment  of  Criminals.  159 

fore,  that  punishment  ought  not  to  be  the  only  thing 
the  State  should  attempt  to  accomplish  in  dealing  with 
crime  ? 

The  second  theorj'  proposed  for  the  treatment  of 
criminals  is  the  Protection  theory.  This  theory,  as 
often  interpreted,  teaches  that  when  the  offence  is  once 
committed  no  amount  of  punishment  can  ever  make 
the  injury  good.  Even  to  attempt  to  inflict  punish- 
ment is  to  act  on  the  principle  that  two  wrongs  make  a 
right.  While  nothing  can  be  done  by  the  State  to 
make  amends  for  the  past,  it  can  do  almost  everything 
to  protect  itself  from  injury  in  the  future.  It  should 
consign  ever}^  criminal  to  temporary  or  perpetual  elim- 
ination from  society  solely  as  the  future  good  of  the 
State  requires.  It  may  even  ignore  his  crime  altogether 
if  there  is  good  ground  for  believing  that  he  will  not 
again  transgress. 

To  this  theory  it  is  objected,  and  reasonably,  that  it 
makes  no  proper  discrimination  between  the  criminal 
and  the  craz}-,  between  those  who  can  but  will  not, 
and  those  who  would  but  cannot,  obey  the  mandates 
of  the  government. 

To  treat  all  criminals  as  though  they  were  merely 
insane,  besides  doing  violence  to  the  actual  facts,  would 
tend  to  multiply  greatly  their  number  rather  than 
reduce  it  to  the  minimum. 

Unless  the  people  see  that  the  criminal  is  treated,  at 
least  to  some  extent,  according  to  his  past  voluntary 
conduct,  the}'  will  lose  their  respect  for  the  government 
and  so  will  all  those  with  whom  they  come  in  contact. 

This  leads  us  to  the  third  proposed  method,  that  of 
making  the  criminal  simply  an  example  to  the  com- 
munity of  the  evil  effects  of  disobedience  to  the  laws. 
Those  who  are  disposed  to  wrong-doing  are  to  see  for 


l6o  The  Sphere  of  the  State. 


themselves  the  fact  that  ' '  the  wa}'  of  the  transgressor  is 
hard."  The  criminal's  past  conduct  is  no  longer  to  be 
considered  in  the  matter.  We  are  simply  to  ask  ourselves 
what  will  be  the  effect  upon  society  in  general  of  the 
infliction  of  the  penalty. 

But  how  are  we  going  to  answer  the  question  on  this 
theory  ?  Why  make  an  example  of  this  person  rather 
than  some  other  ?  Could  the  infliction  of  a  penalty  have 
any  deterrent  effect  at  all  upon  the  people  unless  it  was 
supposed  that  the  person  punished  was  receiving  his 
actual  deserts?  Would  it  not  have  just  the  opposite 
effect  if  they  thought  otherwise  ? 

We  come  next  to  consider  the  last  of  these  four 
theories.  The  thing  to  do  with  the  offender  is  to 
reform  him,  to  bring  him  back  again  into  normal 
relations  to  his  fellows.  The  State  should  not  attempt 
to  vindicate  the  law.  It  should  leave  that  to  a  higher 
power.  But  it  should  concentrate  all  its  energies 
solely  upon  the  matter  of  reformation.  Nothing 
should  be  done  to  the  criminal  that  does  not  tend  to 
» this  end. 

But  when  we  think  of  it  with  any  care  do  we  not  see 
that  no  suffering  or  restraint  would  have  any  tendency 
to  reclaim  the  offender  if  it  were  not  deserved  to  begin 
with  ?  And  do  we  not  also  see  that  the  supremacy  of 
the  government  being  the  one  supreme  good  of  the 
community,  neither  the  reformation  nor  the  life  of  the 
one  who  assails  it  should  prevent  the  government  from 
seeing  to  it  that  this  sovereignty  is  adequately  main- 
tained ? 

It  is  not  to  be  denied,  I  think,  that  all  of  these 
theories  as  to  the  treatment  of  criminals  have  their 
excellencies  as  truly  as  their  defects.  For  no  one  of  them 
is  wholly  true  or  wholly  false.     The  trouble  with  them 


The  Treatmefit  of  Criminals.  1 6 1 

is  that  they  each  deal  with  only  one  side  or  one  phase 
of  the  matter,  and  do  not  take  a  point  of  view  broad 
enough  to  cover  all  the  facts.  Their  common  defects 
are  due  not  so  much  to  inadequate  views  of  human 
nature,  as  to  a  wrong  conception  of  the  State,  and  no 
satisfactory  solution  of  the  problem  before  us  is  possible 
until  this  false  conception  gives  way  to  the  true  one. 

The  true  idea  of  the  State  is  that  of  an  organism. 
If  any  member  of  the  organism  prospers,  all  to  some 
extent  receive  the  benefit ;  if  any  is  injured,  all  to  some 
extent  suffer  loss.  That  is,  whatever  affect^  the  hand 
or  foot  affects  the  whole  body.  The  State  in  dealing 
with  an  offender  is  still  dealing  with  a  part  of  itself 
It  must  never  treat  him  as  an  outside  party.  It  must 
never  degrade  him  simply  for  the  sake  of  degrading, 
but  is  always  to  lead  him,  if  possible,  to  come  to  him- 
self The  offender  by  his  own  act  has  cut  himself  off 
from  his  normal  connection  with  the  organism.  He 
has  deprived  himself  of  the  free  and  full  enjoyment  of 
the  privileges  of  the  brotherhood  of  which  he  is  a 
member,  and  the  penalty  that  is  a  just  penalty  is  in- 
tended to  make  him  aware  of  this  fact.  It  is  evident, 
therefore,  that  the  restraint  or  suffering  that  the  State 
imposes  on  the  offending  member  must  be  so  inflicted 
as  to  accomplish  all  the  ends  proposed  in  the  four 
theories  already  discussed.  It  must  vindicate  the  right 
of  the  State  to  the  supreme  control  of  the  action  of  all 
its  subjects  and  protect  itself  from  further  injury,  while 
at  the  same  time  it  makes  a  proper  example  of  the 
offender  to  others,  and  does  all  it  can  to  bring  him  back 
to  his  normal  relations  to  his  fellows. 

The  only  effectual  way  of  doing  this  is  by  the  system 
of  indeterminate  sentences.  By  this  we  mean  that  no 
person  who  has  violated  the  rights  of  the  brotherhood 


1 62  The  Sphere  of  tJic  State. 

should  be  restored  to  full  membership  until  he  has 
given  good  evidence  of  a  change  of  disposition.  So 
long  as  he  continues  to  be  incapable  of  appreciating 
those  rights  or  unwilling  to  conform  to  them,  he  cer- 
tainly should  be  deprived  of  their  enjoyment.  The  ^ 
judge  who  tries  the  offender  should  be  required  to  fix 
the  minimum  of  imprisonment,  and  furnish  papers 
clearly  stating  the  chief  characteristics  of  his  case. 
But  the  ending  of  the  term  of  incarceration  should  not 
be  made  to  depend  upon  the  sentence  of  the  court.  It 
should  depend  entirely  on  the  person's  fitness  to  return 
to  his  former  status.  So  long  as  a  young  man  can 
count  on  being  half  the  time  the  terror  of  society  and 
half  the  time  in  jail,  the  career  of  crime  will  have  its 
devotees,  and  many  who  take  up  the  profession  and 
pursue  it  with  zest  will  come  to  be  regarded  by  them- 
selves, as  well  as  by  others,  heroes  of  no  inferior 
sort. 

The  only  philosophical  way  of  treating  the  matter  is 
to  say  to  the  criminal :  ' '  We  leave  the  period  of  your 
imprisonment  mainly  in  your  own  hands.  If  good 
evidence  exists  that  you  have  determined  to  lead  a 
virtuous  and  useful  life,  it  will  be  short ;  if  such  evi- 
dence does  not  exist,  it  will  be  long.  If  no  adequate 
change  of  disposition  in  your  case  is  ever  discernible, 
then  for  your  own  sake  and  the  sake  of  society  you 
shall  pass  the  remainder  of  your  days  where  you  can  do 
the  least  harm."  Of  course  this  system  has  its  diffi- 
culties, but  they  are  not  much  greater  than  in  the  case 
of  the  insane.  One  of  the  worst  phases  of  the  present 
system  is  that  when  a  convict  is  released  from  prison  no 
one  will  trust  him.  The  doors  of  employment  and 
sympathy  are  closed  in  his  face.  By  this  system  of  in- 
determinate sentences  he  comes  out  with  a  certificate 


The  Trcatmeiit  of  Criminals.  i6 


o 


of  commendation,  with  a  different  set  of  habits  and  with 
the  probabilities,  just  the  opposite  of  what  they  now  are, 
that  he  will  be  a  good  citizen. 

Along  with  the  system  of  indeterminate  sentences 
and  as  an  essential  part  of  it  should  go  compulsory 
labor.  Nothing  is  more  unreasonable  than  to  allow  a 
man  by  committing  a  crime  to  compel  the  rest  of  the 
community  to  support  him  in  idleness.  He  should  on 
the  contrary  be  himself  compelled  to  do  all  in  his 
power  to  recompense  society  for  his  support.  Further- 
more, it  is  both  dangerous  and  demoralizing  to  allow 
prisoners  to  be  idle.  It  is  a  bad  thing  for  any  person 
to  live  without  work,  for  it  inevitably  leads  to  physical 
and  psychical  degeneracy,  and  makes  it  exceedingly 
likely  that  at  the  first  opportunity  moral  corruption 
will  follow.  Criminals  are  far  more  easily  governed  if 
they  are  made  to  labor,  and  in  no  other  way  can  they 
be  disciplined  to  self-control,  or  fitted  to  earn,  when 
released,  an  honest  livelihood. 

There  is  little  danger  in  our  day  that  prison  adminis- 
tration in  this  respect  will  be  cruel.  In  fact,  the  danger 
is  quite  in  the  opposite  direction.  Most  criminals  are 
better  fed,  better  clothed,  and  better  sheltered  in  prison 
than  out  of  it.  "Hard  labor,"  says  an  expert  on  this 
subject,  "is  such  that  no  prisoner  could  get  a  living 
outside  if  he  did  not  w^ork  harder."  It  is  stated  on 
good  authority  that  the  majority  of  the  inmates  of  some 
of  our  county  jails  during  the  winter  are  persons  who 
have  committed  some  petty  offence  for  the  sake  of 
having  little  to  do  and  a  comfortable  home  in  the  city 
during  the  cold  weather.  An  indeterminate  sentence 
and  compulsory  labor  would  greatly  lessen  this  evil,  if 
not  exterminate  it  altogether. 

The  labor  required  by  the  State  should  not,  however, 


1 64  The  Sphere  of  /he  Stale. 


be  penal  labor,  labor  merely  for  labor's  sake,  but  pro- 
ductive labor,  where  energy  is  expended  in  supplying 
actual  want.  The  brutalizing  effects  of  penal  labor 
cannot  fail  to  be  far  more  pernicious  than  all  its  sup- 
posed advantages.  The  criminal  should  be  led  to  see 
that  his  labor  is  accomplishing  some  useful  result.  The 
methods  of  work  and  the  reward  to  the  worker  should 
be  the  same  for  prisoners  as  for  free  labor,  and  the 
goods  they  manufacture  should  be  sold  at  not  less  than 
the  current  rates  for  articles  of  equal  quality  and  work- 
manship. In  the  case  of  incorrigibles  (who,  according 
to  Superintendent  Brockway ,  number  about  one  third  of 
the  total),  all  the  wages  paid  should  go  directly  to  the 
State.  The  tax-payers,  who  support  them,  have  an  un- 
restricted claim  upon  the  products  of  their  labor.  But 
in  the  case  of  those  who  are  soon  to  mingle  in  society 
and  again  to  be  entrusted  with  all  the  rights  and  privi- 
leges of  a  citizen,  a  small  portion  of  the  earnings  of  the 
especially  industrious  may  reasonably  be  set  aside  for 
the  time  of  liberation,  or  to  enable  something  to  be 
done,  if  needs  be,  for  the  wretched  family  that  crime 
has  thrown  upon  the  State  by  depriving  it  of  its  sole 
means  of  support. 

In  fine,  the  prison  should  be  changed  into  a  great 
industrial  factory,  and  by  force  be  made  as  nearly  self- 
supporting  as  the  circumstances  allow.  A  central 
board  of  managers,  appointed,  of  course,  for  their  fit- 
ness and  not  because  of  party  influence,  should  deter- 
mine what  industries  are  to  be  pursued  in  each  prison, 
should  classify  the  prisoners  with  this  end  in  view,  and 
should  be  exclusively  responsible  for  general  results, 
the  labor  required  and  the  wages  paid  being,  as  said 
above,  the  same  within  the  prison  walls  as  they  would 
be  without.      Unremitting,    systematic  work  is    the 


The  Treatment  of  Criminals,  165 

criminal's  first  and  greatest  need.  He  is  a  criminal 
very  likely  because  of  the  lack  of  this  habit.  By  com- 
pelling him  to  contribute  to  his  own  support  and  the 
support  of  his  family,  if  he  has  one,  we  best  prepare 
him  for  the  time  of  liberation  and  supply  the  most 
effective  test  of  determining  when  that  time  has  arrived. 
The  State  should  also  compel  the  criminal  to  study. 
It  should  do  what  it  can  under  the  circumstances  to 
develop  the  mind  as  well  as  the  body.  If  the  criminal 
has  not  already  been  taught  to  read  and  write,  that,  of 
course,  should  be  first  attended  to,  and  then  should 
follow  instruction  in  those  branches  that  will  best  de- 
velop his  mental  powers  and  best  help  him  to  under- 
stand his  relations  to  the  person  and  property  of  his 
fellows,  as  well  as  his  duties  and  obligations  to  God. 
Secular  knowledge  is  of  little  account  to  any  man  with- 
out moral  and  religious.  In  fact,  such  knowledge  may 
be  a  great  injury  to  a  person  by  only  sharpening  his 
wits  to  make  him  all  the  more  dangerous  to  his  ow^n 
well-being  and  the  well-being  of  his  fellows.  This  is 
doubly  true  of  the  criminal.  What  he  needs  to  have 
drilled  into  him,  next  to  a  habit  of  work,  is  some 
rational  conception  of  his  duties  to  others  and  to  God, 
Nothing  else  will  so  cultivate  a  reverence  for  law  or 
help  a  person  to  a  wise  use  of  hope  and  fear.  The 
prisoner  is  cut  off  by  the  nature  of  the  case  from  the 
possibility  of  getting  this  instruction  from  without.  It 
should  therefore  be  given  from  within  and  no  day 
should  pass  without  some  reminder  of  these  duties  being 
vividly  placed  before  them.  In  fact,  it  may  be  truly 
said  that  every  prison  should  have  an  established  reli- 
gion. By  this  we  mean  that  the  prisoners  should  be 
compelled  to  support  out  of  their  earnings  a  place  for 
non-sectarian  religious  instruction  and  worship.     They 


1 66  The  Sphere  of  the  Stale. 

should  be  obliged  to  attend  the  one  and  left  free  to  fol- 
low their  own  option  as  to  the  other. 

Inasmuch  as  there  exist  in  the  world  criminals  by 
birth  and  environment,  as  well  as  criminals  by  occa- 
sion, the  State  should  not  always  limit  itself  in  its  treat- 
ment of  criminals  to  the  overt  act.  The  embryonic 
criminal  is  just  as  truly  a  source  of  solicitude  to  the 
State  as  the  fully  developed.  If  natural  science  has 
taught  us  anything,  it  has  taught  us  to  make  much  of 
hereditary  descent.  The  children  of  criminals,  cer- 
tainly of  incorrigible  criminals,  are  almost  sure  to  be 
criminals.  They  see  nothing  of  a  life  of  virtue  and 
cannot  reasonably  be  expected  to  do  otherwise  than 
follow  the  parental  example.  The  State,  knowing  this, 
should  come  to  the  rescue.  If  the  State  cannot  make 
the  slums  respectable  it  should  take  the  children  out  of 
the  slums  and  give  them  a  chance  to  lead  decent  lives. 
"It  does  not  need  demonstration,"  says  Charles  Dud- 
ley Warner,  ' '  that  no  country  can  go  on  to  prosperity 
with  society  rotting  at  the  foundations.  A  good  many 
noble  men  and  women  are  devoting  their  lives  to  the 
rescue  of  these  children,  but  it  is  only  pecking  round 
the  edges  of  a  great  evil.  The  whole  community  must 
take  up  the  matter  seriously.  I  suppose  it  will  do  this 
when  it  sees  that  it  is  more  economical,  costly  as  it  may 
be,  to  deal  with  nascent  crime  than  with  full-blown 
crime." 

The  time  has  passed  for  the  State  to  attempt  to  dis- 
pose of  any  class  of  its  criminals  by  a  system  of  trans- 
portation. It  is  wrong  in  principle  and  never  has  been 
a  success.  England  has  abandoned  it  after  a  long  trial 
as  demoralizing  to  the  convicts  themselves,  injurious 
to  the  country  to  which  they  are  sent,  and  attended 
with  too  great  expense  ;  besides  multiplying  crime  at 


t 


The  Treatment  of  Criminals.  167 

liome,  the  hope  of  being  transported  actually  stimulat- 
ing to  new  crimes,  rather  than  deterring  from  old  ones. 
The  French  penal  colony  at  New  Caledonia,  for  essen- 
tially the  same  reason,  is  not  likely  much  longer  to 
continue.  The  State  ignobly  shirks  its  duty  to  the 
vicious  as  well  as  the  virtuous  if  it  simply  puts  its 
criminals  out  of  sight  and  leaves  them  to  revel  in  their 
own  abominations. 

The  State  should  tighten  its  hold  upon  its  criminals, 
not  relax  it.  It  should  fight  out  its  civil  wars  on  its 
own  territory.  The  place  to  quell  rebellion  is  where  it 
originates.  The  State  cannot  allow  crime  and  crimi- 
nals to  keep  on  multiplying,  and  expect  to  atone  for 
its  negligence  by  any  such  subterfuge  as  a  free  ticket- 
of-leave.  No  sane  person  would  ever  think  of  treating 
a  sore  on  his  body  by  any  such  method,  and  it  will  not 
work  any  better  with  the  body-politic.  If  the  diseased 
member  offend  you— is  a  perpetual  injury  and  re- 
proach to  the  whole  body — cut  it  off  and  cast  it  from 
you,  and  at  the  same  time  see  to  it  that  it  is  not  left 
anywhere  above  the  sod  to  pollute  the  fresh  air  of 
heaven  with  its  foul  odor. 

The  State  has  an  absolute  control  of  all  its  members. 
The  life  as  well  as  the  liberty  and  property  of  every 
one  of  its  citizens  must  be  given  up  whenever  the  good 
of  the  State  calls  for  the  sacrifice.  If  this  is  true  of 
the  virtuous  and  worthy,  how  much  more  is  it  true  of 
the  vicious  and  unworthy  ?  The  question  of  capital 
punishment  for  certain  crimes  is  one  of  expediency 
merely.  We  must  always  act  on  the  principle  that  the 
life  of  humanity  is  of  more  value  than  that  of  any  indi- 
vidual. It  is  held  by  many  that  while  the  penalties  for 
crimes  during  the  last  fifty  years  have  constantly  been 
growing  milder,   the  number  of  crimes  of  the  most 


1 68  The  Sphere  of  the  State. 


serious  character  has  constantly  been  increasing  much 
faster  than  the  population.  Many  of  the  countries  that 
abolished  the  death  penalty  have  returned  to  it  because 
of  this  fact.  The  principle  of  natural  selection  in 
biology  seems  here  clearly  to  teach  us  the  lesson  that 
the  best  way  to  purify  the  race  is  by  the  sure  and 
absolute  elimination  of  those  individuals  who  show  by 
their  conduct  that  they  will  not  assimilate. 

One  of  the  most  imperative  needs  of  our  times,  at 
least  in  America,  is  a  more  efficient  system  for  detect- 
ing crime,  and  for  the  speedy  conviction  of  the  guilty. 
Ex- Warden  Brush  of  Sing  Sing  prison  puts  it  none  too 
strongly  when  he  says  :  "  One  of  the  greatest  evils  of 
our  criminal  system  to-day  is  that  the  protection  which 
the  law  is  supposed  to  throw  around  the  innocent  is 
practically  given  to  the  criminal."  The  maxims  upon 
which  our  present  system  largely  rests  were  adopted 
when  the  oppression  was  from  above,  not  as  now  from 
below.  Then,  the  agents  of  the  crown  despoiled  the 
people  and  threatened  their  lives.  In  our  day  profes- 
sional burglars  and  assassins  are  the  ones  who  keep 
society  in  terror.  The  New  Orleans  tragedy  of  March, 
1891,  is  not  an  impossibility  in  any  one  of  our  great 
cities,  and  earnestly  admonishes  us  to  be  on  our  guard. 
The  maxim  that  it  is  better  that  ninety-nine  guilty 
persons  should  go  unpunished  than  that  one  innocent 
person  should  suffer,  as  ordinarily  interpreted,  cannot 
bear  the  strain  of  actual  application.  "The  thirty 
thousand  habitual  criminals,"  according  to  Colonel 
Dawson,  "  who  every  night  prowl  about  the  streets  of 
New  York,"  give  us  a  good  example  of  its  practical  re- 
sults. The  position  seems  almost  equally  untenable 
that  no  alleged  criminal  should  be  compelled  to  testify 
against    himself.       Indeed,   it  is  extremely  doubtful 


The  Treatment  of  Criminals.  169 

whether  we  shall  ever  get  the  mastery  of  this  matter 
until  we  adopt  the  method  of  the  French,  and  say  to 
every  suspected  offender  :  ' '  Here  are  the  charges  and 
the  evidence  ;  show  that  you  are  innocent." 

The  trouble  with  the  present  order  of  things  is  not 
so  much  with  our  courts  and  judges  as  it  is  with  our 
laws.  The  first  eight  amendments  to  our  national 
constitution,  adopted  to  protect  the  people  from  the 
government,  have  carried  us  away  from  our  purpose. 
They  need  a  revision.  We  ought  to  have  some  amend- 
ments to  protect  the  government  from  the  people.  We 
need  a  set  of  laws  that  will  not  only  prevent  all  oppres- 
sion of  the  iimocent,  but  will  also  see  to  it  that  the 
guilty  are  promptly  apprehended  and  made  to  suffer. 
Then  with  a  universal  application  of  the  principle  of 
an  indeterminate  sentence  beyond  a  certain  fixed  mini- 
mum, compulsory  labor,  and  compulsory  education,  we 
may  hope  to  stay  the  rising  tide  of  crime  and  do  far 
more  than  can  otherwise  be  done  to  free  the  future 
from  its  blighting  influence.  Away  with  the  notion  of 
a  false  philosophy  that  all  moral  evil  is  merely  a 
disease.  Away  with  the  idea  that  the  greatest  crimi- 
nals do  not  deserve  imprisonment  and  chains,  but 
fruits  and  flowers.  lyCt  us  the  rather  keep  our 
sympathy  and  our  tears  for  the  helpless  victims  who 
have  innocently  suffered,  and  their  once  happy  homes 
that  ruf&an  hands  have  made  forever  desolate. 


CHAPTER   X. 

THE  STATE  IN  ITS   RELATION  TO  THE  POOR. 

It  is  one  thing  to  be  poor,  and  quite  another  to  be  a 
pauper.  All  the  people  in  the  region  where  Abraham 
I^incoln  spent  his  boj'hood  days  were  poor,  and  wretch- 
edly so,  but  few  if  any  of  them  were  dependent  on  the 
charity  of  the  State.  "At  Rome,"  says  M.  Baron, 
' '  when  everybody  was  poor,  there  were  no  paupers  ;  it 
was  the  growing  luxury  of  some  which  disclosed  the 
poverty  of  others."  The  only  forms  of  poverty  that 
can  be  regarded  as  absolute  evils  are  indigence  and 
want,  and  it  is  of  this  kind  of  poverty  we  treat 
when  we  speak  of  the  poor  from  the  standpoint  of  the 
State. 

A  few  statistics  may  help  us  to  appreciate  the  present 
status  of  affairs  on  this  matter.  The  annual  expendi- 
ture of  the  state  of  New  York  for  the  relief  of  the 
poor,  according  to  the  eleventh  annual  report  of  the 
State  Board  of  Charities,  in  1877  was  $8,606,552.03. 
The  total  number  of  persons  supported  in  the  institu- 
tions of  the  state  was  43,095,  while  out-door  relief  was 
given  to  436,358.  According  to  the  report  of  the 
same  board  for  1892  the  annual  expenditure  was 
$18,228,712.57,  and  the  number  of  in-door  paupers  was 
83,667.  The  statistics  given  in  the  United  States 
Census  reports  on  this  subject  do  not  present  even  an 

170 


The  State  in  its  Relation  to  the  Poor,      i  7  [ 

approximation  to  the  truth  concerning  American 
pauperism.  The  census  of  1880,  for  example,  gives 
the  number  of  inmates  of  almshouses  in  Massachusetts 
June  I,  1880,  as  4469,  and  the  out-door  paupers  as 
954 ;  while  other  authentic  reports  give  the  latter 
number  for  July  i,  1880,  at  not  less  than  12,000. 
' '  The  average  number  of  the  out-door  poor  in  Massa- 
chusetts," says  F.  B.  Sanborn,  the  secretar}^  of  the 
Massachusetts  Board  of  Charities,  ' '  is  never  less  than 
three  times  the  number  in  poor-houses  ;  and  has  some- 
times, within  the  past  ten  years,  risen  to  be  more  than 
five  times  as  many."  The  same  authority  estimates 
the  number  at  present  receiving  State  aid  in  this  coun- 
try at  over  "  1,000,000  different  persons  during  the 
year."  In  France  about  every  fifteenth  person  is 
helped  by  the  government  at  some  time  during  the 
year  ;  and  in  Great  Britain  the  corresponding  propor- 
tion is  nearly  a  tenth.  The  annual  tax  that  England 
levies  for  pauper  support  is  not  less  than  $40,000,000. 
These  facts  illustrate  how  serious  the  pauper  question 
has  become  in  all  lands,  and  how  essential  it  is  that 
everj'  government  in  its  treatment  of  the  matter  should 
have  a  wise  and  well-defined  purpose. 

The  poor  have  existed  in  all  ages  and  climes.  It  is 
only  the  form  of  the  problem  that  has  changed  from 
generation  to  generation.  Even  the  old  Gracchian 
corn  laws  were  devised  as  a  measure  of  poor  relief. 
When  Caesar  returned  from  his  victories  over  Pompey 
in  the  East,  he  found  320,000  persons  in  and  about 
Rome  partaking  of  this  relief,  and  Merivale  says  that 
in  the  time  of  Augustus  an  equal  number  were  de- 
pendent upon  the  bounty  of  the  State.  For  the  most 
part,  however,  among  the  ancients  slavery  took  the 
place  of  pauperism,   and  several  of  the  later  Roman 


172  The  Sphere  of  the  State. 

emperors  endeavored  to  put  an  end  to  mendicity  by- 
decreeing  that  all  able-bodied  beggars,  if  free,  should 
be  sold  into  slavery.  The  poor  in  these  ancient  com- 
munities were  not  isolated  from  the  rich,  as  is  com- 
monly the  case  in  our  day,  but  grouped  around  them 
in  such  a  manner  as  to  prevent  the  formation  of  a 
proletariate.  In  the  family  they  were  the  rich  man's 
slaves.  In  the  city  they  were  his  clients,  whose 
number  and  good-will  were  often  his  stepping-stone 
to  influence  and  power. 

A  poor  man  in  the  middle  ages  after  the  abolition  of 
slavery  attached  himself  to  the  soil  he  tilled  as  a  serf, 
or,  if  he  could,  joined  a  guild  or  some  religious  order. 
Failing  to  gain  admission  into  one  of  these  groups,  he 
became  a  professional  beggar  or  a  brigand. 

It  has  been  left  to  the  present  industrial  age,  how- 
ever, to  develop  the  modern  pauper,  and  he  seems  to 
be  almost  an  essential  part  of  modern  progress.  Give 
to  every  workman  the  liberty  to  choose  his  trade,  to 
change  it  at  will,  to  sell  his  labor  to  whomsoever  he 
pleases  and  at  whatsoever  price  he  pleases ;  and  give 
to  capital  full  liberty  to  change  its  form  and  destination 
at  its  own  option,  and  we  must  expect  lamentable 
crises  to  occur  when  those  who  are  dependent  on  their 
work  for  a  livelihood  will  suddenly  find  that  there  is 
no  demand  for  their  labor,  or  that  their  labor  cannot 
furnish  them  the  actual  necessities  of  life.  Add  to  this 
number  those  whom  sickness,  misfortune,  and  crime 
deprive  of  the  means  of  support,  and  it  is  not  difficult 
to  account  for  the  fact  that  every  country,  however 
progressive  and  civilized  it  may  be,  has  its  pauper 
class.  In  fact,  the  most  startling  instances  of  misery 
and  degradation  are  found  in  the  large  cities  where 
wealth  most  abounds.   This  is  accounted  for  in  part,  to 


The  State  in  its  Relation  to  the  Poor,      i  73 

be  sure,  by  the  attractive  power  of  wealth  for  those  in 
distress.  But  we  must  also  allow  that  it  is  due  in  large 
measure  to  the  methods  of  modern  business  life.  For 
while  in  many  ways  they  greatly  redound  to  the  good 
of  society  in  general,  and  the  laboring  classes  as  a 
body,  they  undoubtedly  tend  to  develop  a  large  class 
of  hopeless  and  helpless  unfortunates  in  those  very 
centres  where  industry  most  thrives. 

Fully  acknowledging  these  facts  and  sincerely  be- 
moaning their  attendant  ills,  there  are  many  who  answer 
the  question,  "  What  should  the  government  do  to  miti- 
gate these  evils?"  by  saying,  "Do  nothing  at  all." 
They  argue  in  support  of  this  position  that  to  assist  the 
indigent  and  alleviate  their  misery  is  to  take  away  the 
sanction  that  nature  has  put  upon  the  duty  of  foresight  ; 
that  if  destitution,  privation,  and  disease  are  no  longer 
to  be  the  consequences  of  improvidence,  you  destroy  at 
once  the  first  and  principal  check  upon  this  vice  ;  that 
the  two  causes  of  poverty  being  insufficient  labor  and 
insufficient  wages,  anything  that  artificially  helps 
laborers  to  either  only  injures  the  whole  class  ;  that 
the  work  or  money  that  is  provided  for  the  assisted  is 
taken  away  from  the  unassisted,  and  thus  the  system 
tends  to  reduce  to  penury  as  many  as  it  relieves  ;  that 
legal  charity  is  the  most  vicious  of  all  modes  of  assist- 
ance, as  it  confers  upon  a  man  the  right  to  plan  for  and 
demand  support  for  his  family,  as  well  as  himself, 
the  moment  his  own  indiscretion  or  neglect  brings  them 
to  want.  "  From  the  moment  public  charity  becomes 
regular  and  notorious,"  says  another,  "  it  becomes  in- 
jurious, not  only  to  society  as  a  whole,  but  to  the  poor 
in  particular  ;  injurious  to  those  it  assists  and  those  it 
does  not  assist  ;  injurious  both  morally  and  physically  ; 
injurious  even  in  proportion  to  the  liberality  of  its  in- 


1  74  TJic  Sphere  of  the  State. 

tentions  and  to  the  means  it  employs.  If  public  charity 
were  not  condemned  by  political  economy,  it  should  be 
condemned  by  philanthropy." 

In  spite  of  these  considerations,  some  of  which  ought 
to  have  great  weight,  the  position  that  the  government 
should  make  provision  for  the  destitute  is  clearly  re- 
quired by  the  general  principle  of  mutual  helpfulness. 
The  State  is  an  organism  in  which  if  any  member  suf- 
fers all  to  some  extent  suffer.  It  is  the  duty  of  the 
State,  for  the  good  of  all,  to  do  what  it  can  to  reduce 
this  suffering  to  the  minimum.  It  should  never  permit 
any  of  its  members  to  be  left  to  no  other  alternative 
than  theft  or  suicide.  While  regulating  its  relief  so  as 
to  discourage  culpable  improvidence,  it  should  not  allow 
any  one  within  its  borders  to  die  of  starvation  for  lack 
of  the  actual  necessities  of  life.  Simple  justice  often 
requires  that  the  State  should  provide  for  those  of  its 
servants  who  have  grown  infirm  in  its  service,  or  for 
their  widows  and  orphans.  It  cannot  equitably  leave 
to  themselves  those  whom  some  measure  of  general 
utility  has  deprived  of  their  all.  It  ought  also  to  care 
temporarily,  at  least,  for  those  whose  resources  have 
suddenly  been  cut  off  by  the  ravages  of  a  great  fire,  a 
flood,  or  a  pestilence.  Prudence  even  may  sometimes 
justify  the  helping  of  those  whom  some  extraordinary 
depression  in  business  has  deprived  of  a  livelihood,  and 
whose  dark  discontent  makes  them  a  menace  and  a 
peril  to  the  tranquillity  of  the  State. 

Side  by  side  with  the  principle  oi  laisser faire ,  laisser 
passer,  and  the  individualism  that  it  extols,  must  be  put 
the  principle  of  solidarity.  Every  State  is  bound  to  guar- 
antee to  the  individuals  that  compose  it  the  protection  of 
their  lives  and  property.  And  since  all  other  blessings 
depend  on  the  protection  of  life,  every  State  is  as  truly 


The  State  m  its  Relation  to  the  Poor.     175 

bound  to  prevent  death  by  poverty  as  to  suppress  mur- 
der. "  From  this  impregnable  position,"  as  Secretary 
Sanborn  calls  it,  is  to  be  developed  the  correct  system 
of  charitable  administration  for  any  State. 

It  is  acknowledged  that  all  charity,  however 
righteous  the  principle  upon  which  it  is  administered, 
however  indispensable  in  its  practice  or  beneficent  in 
its  effects,  has  its  drawbacks.  It  always  runs  the  risk 
of  perpetuating  poverty.  It  tends  to  benumb  the  feel- 
ings and  cripple  the  will.  He  who  is  accustomed  to 
depend  on  others  thereby  becomes  less  anxious  and 
ambitious  to  help  himself.  Undoubtedly  there  are 
some  in  every  community  of  whom  it  may  well  be  said, 
as  it  was  said  of  an  English  weaver,  ' '  They  are  born 
for  nothing,  nursed  for  nothing,  reared  for  nothing, 
clothed  for  nothing,  sick  and  cured  for  nothing,  mar- 
ried and  have  children  who  live  like  their  father  for 
nothing,  and  when  they  die  are  buried  and  prayed  over 
for  nothing. ' '  And  yet  the  State  for  this  reason  should 
not  abandon  all  relief.  It  should  the  rather  strive  so  to 
administer  its  relief  as  to  reduce  this  tendency  to  the 
minimum. 

No  one  will  deny  that  the  individual  charity  that  is 
born  of  the  heart  is  the  most  sacred  and  beautiful  of  all 
the  forms  of  assistance.  All  will  extol  the  charity 
"  which,  not  satisfied  with  throwing  down  a  few 
pennies  under  the  momentary  empire  of  pity  or  impor- 
tunity, goes  out  to  meet  the  unfortunate,  visits  him  in 
his  abode,  and,  with  delicate  discernment,  adjusts  the 
aid  given  to  the  extent  of  the  need,  and  dresses  the 
wounds  of  misery  with  tact  and  even  with  tenderness. ' ' 
Admirable  and  praiseworthy  as  this  voluntary  and 
spontaneous  charity  may  be,  yet  as  a  matter  of  fact  it 
is  too  isolated  and  irregular  to  take  the  place  of  the 


I  76  The  Sphere  of  the  State. 


charity  of  the  State.  Too  many  cases  of  actual  desti- 
tution escape  its  notice.  In  order  to  be  efficacious  and 
prudent,  charity  must  be  organized.  Only  thus  can  it 
obtain  the  resources  needful  for  the  relief  of  misfortune, 
or  wisely  adapt  them  to  its  manifold  forms.  The  State, 
therefore,  should  have  supreme  control  of  all  charitable 
institutions.  It  should  hold  itself  ultimately  respon- 
sible for  the  relief  of  its  helpless  poor,  and  it  should 
see  that  institutions  adequate  in  number,  equipment, 
and  location  are  established  throughout  its  borders  for 
the  accomplishment  of  this  end.  In  every  civilized 
land  in  our  day  it  should  truly  be  said,  as  Blackstone 
says  of  Great  Britain  :  "There  is  no  man  so  indigent 
or  wretched,  but  he  may  demand  a  supply  sufficient 
for  all  the  necessities  of  life  from  the  more  opulent  part 
of  the  community  by  means  of  the  several  statutes  en- 
acted for  the  relief  of  the  poor. ' ' 

The  system  of  legal  charity  now  exists  in  Norway, 
Sweden,  Russia,  Denmark,  Germany,  Holland,  Bel- 
gium, and  Switzerland,  as  well  as  in  Great  Britain  and 
the  United  States.  France,  while  having  no  separate 
laws  on  the  subject,  contributes  enormous  sums  every 
year  to  the  support  of  institutions  for  the  relief  of  the 
poor. 

In  the  East  the  relief  of  the  destitute  is  still  treated 
as  a  purely  religious  duty.  The  sacred  books  of  the 
Hindoos,  the  Persians,  and  the  Jews  go  so  far  as  to 
prescribe  the  amount  the  wealthy  shall  give  to  the 
poor.  The  Koran,  without  fixing  a  minimum,  has 
very  definite  precepts  on  the  subject. 

The  first  serious  attempt  to  formulate  a  general  plan 
for  the  relief  of  the  poor  at  the  public  charge  was 
made  by  England  in  1601.  The  act  of  this  year,  known 
as    43   Elizabeth,    is    the    actual    foundation    of  the 


The  State  in  its  Relation  to  the  Poor.      177 


English  poor-law  system,  and  also  in  the  main  that  of 
the  United  States.  Dr.  Burns,  a  great  authority  on 
this  subject,  in  his  History  of  the  Poor-Laws,  says  of 
this  famous  statute  that  out  of  it  "more  litigation  and 
a  greater  amount  of  revenue  have  arisen,  with  conse- 
quences more  extensive  and  more  serious  in  their 
aspect  than  ever  were  identified  with  any  other  act  of 
Parliament  or  system  of  legislation  whatever." 

This  statute  provides  for  the  employment,  by  the 
government,  of  poor  children  and  able-bodied  adults, 
and  "for  the  necessary  relief  of  the  lame,  impotent, 
old,  and  blind,  and  such  other  among  them  being  poor 
and  not  able  to  work."  A  tax  was  levied  upon  every 
inhabitant  and  owner  in  every  parish  in  England  to 
support  the  system  and  carry  its  provisions  into  effect. 
Sixty  years  later  the  statute  14  Charles  II.  was 
passed,  defining  what  constituted  a  pauper  settlement, 
and  giving  the  power  of  compulsory  removal  from 
one  parish  to  another  of  poor  persons  not  legally 
settled  therein. 

Before  this  time  the  poor  had  often  been  licensed  to 
go  begging  in  specified  parishes,  wearing  a  badge 
"both  on  the  breast  and  back  of  their  outermost 
garment."  And  even  down  to  18 10,  by  a  statute  of 
William  III.,  all  persons  receiving  parochial  relief, 
and  their  wives  and  children,  were  required,  under 
severe  penalties,  to  wear  a  badge  on  the  shoulder  of 
the  right  sleeve— a  large  "P"  cut  in  red  or  blue 
cloth. 

The  system  of  farming  the  poor  was  introduced  in 
1722,  and  any  person  who  refused  to  be  so  treated  was 
not  to  be  relieved  at  all.  It  frequently  happened 
under  this  system  that  contractors  were  non-residents, 
and  paid  little  or  no  attention  to  the  performance  of 


178  The  Splicrc  of  the  State. 


their  obligations.  The  great  restraint  that  was  placed 
by  all  the  regulations  of  this  period  upon  the  free 
movement  of  the  laboring  classes  was  greatly  to  their 
injury,  and  decidedly  increased  the  pauper  class. 
Frauds  of  the  gravest  sort  were  often  practised  upon 
the  poor  by  the  parochial  officers.  Payments  in  debased 
or  counterfeit  money  were  not  uncommon.  A  large 
part  of  the  funds  was  wasted  in  needless  and  costly 
litigations  about  settlements.  These  and  other  evils 
led  to  the  passing  of  the  statute  22  George  III.,  or 
the  famous  Gilbert's  act  in  1783.  By  this  act  the 
workhouse  test  of  43  Elizabeth  was  abolished,  and 
any  person  out  of  employment  could  throw  himself 
upon  the  parish  until  employment  was  found  for  him. 
If  the  wages  received,  when  employed,  were  not  suffi- 
cient to  support  him,  he  could  oblige  the  parish  to 
make  up  the  deficit.  This  measure  brought  England 
almost  to  the  verge  of  universal  pauperism,  at  least 
among  the  laboring  classes.  The  allowance  for  a  child 
was  so  out  of  proportion  to  that  for  an  adult  that  a 
man  with  a  large  family  could  almost  support  himself 
from  these  allowances  without  labor.  Illegitimate 
children  received  more  than  those  born  in  lawful  wed- 
lock, and  they  abounded  on  every  hand.  "Under  the 
influence  of  this  principle  the  number  of  the  indigents 
constantly  increased  in  England,  and  the  poor-rate  had 
reached  the  exorbitant  sum  of  $33,957,995  for  a  popula- 
tion of  13,894,574  inhabitants,  which  is  more  than 
$2.50  a  head.  There  were  districts  in  which  misery 
had  reached  such  a  proportion  that  farmers,  unable  to 
bear  the  burden  of  the  poor-tax,  gave  up  their  leases  ; 
the  land  did  not  pay  the  cost  of  cultivation,  and  able- 
bodied  population  was  left  without  work  or  wages." 
Sir  Matthew  Hale  in  the  middle  of  the  seventeenth 


The  State  in  its  Relation  to  the  Poor.     1 79 

century,  writing  of  these  evils,  said  in  behalf  of  the 
poor  themselves,  they  "must  in  time  prodigiously 
increase  and  overgrow  the  whole  face  of  the  kingdom 
and  eat  out  the  heart  of  it." 

This  exigency,  which  was  one  of  the  gravest  in 
English  history,  led  to  the  great  Reform  Act  of  1834. 
The  first  object  of  this  act  was  to  raise  the  laboring 
classes  out  of  the  degradation  into  which  the  mal- 
administration of  the  laws  for  their  -relief  had  thrown 
them,  and  the  second  object  was  to  diminish  the  crush- 
ing burden  of  the  poor-rates  to  more  reasonable  limits. 
The  old  workhouse  test  was  restored,  although  out- 
door relief  might  be  given  to  persons  wholly  unable  to 
work  from  old  age  or  infirmity,  and  to  those  who  were 
in  some  special  temporary  distress.  Allowances  in  aid 
of  wages  were  abolished.  A  system  of  paid  overseers 
was  created,  and  severe  penalties  were  inflicted  upon 
those  who  failed  to  discharge  properly  their  obligations. 
Illegitimacy  was  checked  by  punishing  the  father  in- 
stead of  rewarding  the  mother,  and  the  laws  concerning 
'  pauper  settlements  were  so  amended  as  to  encourage 
the  migration  of  laborers  from  place  to  place  in  search 
of  work.  Within  three  years  after  the  passage  of  this 
act,  the  annual  saving  in  the  poor-rates  amounted  to 
$15,000,000.  And  so  great  have  been  its  benefits  to  all 
classes,  that,  with  slight  alteration,  it  has  continued  in 
operation  until  this  day. 

This  brief  history  teaches  us  that  any  system  of 
charity  that  collides  with  the  maxim,  "  If  any  would 
not  work,  neither  should  he  eat,"  is  vicious  in  princi- 
ple, and  a  great  injury  to  all  classes.  Every  able-bodied 
adult  should  be  ' '  set  on  work  ' '  and  should  be  relieved 
of  his  destitution  only  on  that  basis. 


1 80  The  Sphere  of  the  State. 

The  recommendations  of  Thiers  to  the  French  Na- 
tional Assembly  in  1850,  on  public  assistance,  seems  to 
be  a  good  one — that  certain  public  works,  especially  in 
our  great  cities  where  the  poor  most  congregate,  should 
be  reserved  for  general  crises,  which  are  more  or  less 
periodic,  instead  of  being  too  prodigal  of  them  in  times 
of  prosperity  ;  and  that  instead  of  improvising  fruitless 
occupations  for  the  unemployed  in  periods  of  distress, 
the  State  should  hold  itself  in  readiness  in  such  a  man- 
ner as  not  to  be  forced  to  wait  in  an  emergency  for 
plans,  estimates,  and  votes. 

Nor  should  the  one  who  throws  himself  on  the  State 
be  supported  in  a  condition  of  so  much  comfort  as  he 
who  cares  for  himself  is  able  to  provide.  It  is  this 
adult  pauper  class  that  furnishes  the  most  difficult  and 
delicate  problems  connected  with  the  subject  of  poor 
relief.  Many  philanthropic  efforts  that  have  been  made 
in  the  past  for  assisting  the  poor  have  done  more  harm 
than  good  because  of  radical  defects  here.  For  example, 
some  of  the  workshops  that  have  been  established  in 
Paris  and  other  cities  for  poor  women  have  so  reduced 
the  wages  of  free  operatives  that  they  cannot  any  longer 
earn  enough  by  working  at  home  to  support  themselves 
in  decency,  especially  if  they  have  young  children.  It 
is  plainly  the  duty  of  the  State  to  limit  the  legal  assist- 
ance of  able-bodied  adults  to  cases  of  actual  destitution 
and  then  only  in  moderation,  allowance  being  made 
for  special  emergencies  which  from  their  nature  cannot 
come  under  the  general  rule. 

The  proper  treatment  of  destitute  children  presents 
but  little  difficulty.  Here  self-support  is  out  of  the 
question.  In  no  way  are  they  responsible  for  their  lot. 
The  assistance  of  the  State  in  their  case  ought  to  extend 
to  their  entire  physical  and  moral  life.     Not  content 


The  State  in  its  Relation  to  the  Poor.     1 8 1 

with  supplying  the  necessities  of  the  body,  it  should 
especially  attend  to  the  development  of  the  mind.  This 
is  the  best  and  most  permanent  form  of  assistance.  For 
it  soon  enables  the  one  who  receives  it  to  dispense  with 
all  other  forms.  As  much  should  be  done  as  possible 
by  the  State  to  find  suitable  homes  for  children  of  ma- 
ture years,  where  they  will  be  of  help  to  others  and 
have  an  opportunity  to  develop  by  their  own  exertions 
into  good  and  useful  citizens. 

Equally  clear  is  the  duty  of  the  State  with  reference 
to  the  helpless  poor  whom  sickness  or  infirmity  has 
deprived  of  the  use  of  their  powers.  Here,  by  the  na- 
ture of  the  case,  will  be  the  largest  field  for  legitimate 
expenditure  by  the  State.  But  even  this  should  be 
carried  on  with  moderation.  Public  hospitals  and  in- 
firmaries may  be  so  conducted  as  to  make  people  reck- 
less of  their  conduct  or  too  easily  inclined  to  throw  the 
sick  or  decrepit  among  them  upon  public  charit}^  when 
thej^  could  and  ought  to  provide  for  them  at  their  own 
expense  and  in  their  own  homes. 

One  of  the  many  things  the  younger  Pitt  did  in  Eng- 
land to  help  on  the  reform  of  the  poor-laws  of  his  time, 
was  to  recommend,  in  1796,  that  "an  annual  report 
should  be  made  to  Parliament,  which  should  take  on 
itself  the  duty  of  tracing  the  effect  of  its  own  system 
from  year  to  year,  till  it  should  be  fully  matured  ;  that, 
in  short,  there  should  be  a  yearly  poor-law  budget, 
by  which  the  legislature  would  show  that  they  had  a 
watchful  eye  upon  the  interests  of  the  poorest  and  most 
neglected  part  of  the  community."  Josiah  Quincy 
recommended  the  same  plan  to  the  legislature  of 
Massachusetts  in  1821,  but  it  was  more  than  forty  years 
before  it  was  acted  on  and  the  first  board  of  charities 
called  into  being.     The  system  is  now  adopted  in  all 


t82  The  Sphere  of  the  State. 


the  principal  states  of  the  Union,  and  has  become  an 
indispensable  part  of  every  efficient  scheme  of  poor- 
relief. 

Pauperism  in  America  is  quite  a  different  thing  from 
pauperism  in  England  or  on  the  continent  of  Europe. 
Mr.  Senior  once  said  of  the  English  poor-law  system 
that  it  was  originated  in  an  attempt  substantially  to 
restore  the  expiring  system  of  slavery.  It  must  be 
admitted  that  its  object  was  quite  as  much  to  preserve 
class  distinctions  and  to  advance  the  interests  of  the 
privileged  few  as  to  relieve  the  distress  of  the  poor. 
In  America,  on  the  other  hand,  relief  has  been  ad- 
ministered in  a  spirit  friendly  to  the  advancement 
of  the  poor.  We  did  not  have  at  the  outset  an 
hereditary  pauper  class,  and  our  system  has  not 
created  such  a  class.  For  the  first  one  hundred  and 
fifty  years  of  our  existence,  though  poverty  often 
abounded,  there  was  little  or  no  pauperism.  But  from 
the  French  war  of  1754  down  to  1820  it  was  consider- 
ably developed.  Good  authorities  estimate,  however, 
that  since  that  time  the  number  of  paupers  in  propor- 
tion to  the  population  has  not  essentially  increased. 
Had  it  not  been  for  the  immigration  it  would  have 
been  largely  diminished.  "Two  thirds  of  the  abun- 
dant pauperism  of  Massachusetts,"  says  Sanborn,"  is 
found  among  the  immigrants  of  the  last  thirty  years 
and  their  descendants."  In  New  York,  50,989  of  its 
83,667  indoor  paupers  in  1892  were  of  foreign  birth. 
" The  foreign  population  of  this  country,"  says  Fred 
H.  Wines  in  the  United  States  Census  Bnl/etin,  dated 
July  8,  1891,  "contributes,  directly  or  indirectly,  in 
the  persons  of  the  foreign-born  or  of  their  immediate 
descendants  very  nearly  three-fifths  of  all  the  paupers 
supported  in  almshouses."     A  large  proportion  of  this 


The  State  in  its  Relation  to  the  Poor.     183 

number  are  congenital  idiots,  lunatics,  or  incurable  in- 
valids. The  recommendation  of  the  New  York  State 
Board  of  Charities,  in  their  report  for  1893,  that  all 
such  immigrants  should  be  sent  back  to  their  homes 
is  timely  and  should  at  once  be  enacted  into  a  law. 
We  are  bound  to  protect  ourselves  against  this  class 
of  foreigners.  To  this  end  all  immigrants  should  be 
required  to  procure  certificates  of  their  good  moral 
character  and  their  physical  and  mental  ability  to  pro- 
vide for  themselves.  They  should  be  denied  admis- 
sion unless  they  can  obtain  such  a  certificate  from  the 
local  authorities  of  the  various  countries  from  which 
they  come,  duly  authenticated  by  some  court  or  ofiicer 
of  public  record.  An  interstate  Board  of  Charities 
should  also  be  established  to  control  the  migration 
of  paupers  from  state  to  state,  and  to  save  the  extrava- 
gant waste  of  public  money  that  is  now  going  on 
in  costly  and  unnecessary  litigation  over  their  legal 
settlement. 

We  have  treated  thus  far  of  the  duty  of  the  State 
;to  relieve  the  destitute,  but  it  would  be  a  short-sighted 
policy  that  would  simply  prune  the  branches  of  pau- 
*perism  and  do  nothing  to  tear  up  its  root.  Over  two 
hundred  years  ago  Sir  Josiah  Childs  laid  down  the 
principle,  that  the  first  duty  of  charitable  administra- 
tion was  to  prevent  the  need  of  charity.  The  State 
should  not  hesitate  to  go  beyond  mere  temporary  re- 
lief, if  it  can  find  any  waj^  to  diminish  the  need  of  relief 
in  the  future.  Henry  George  teaches  that  unjust  land 
laws  are  the  sole  cause  of  poverty,  and  the  Anti- 
poverty  Society  expects  to  abolish  pauperism  by  the 
reform  of  these  laws.  This  may  be  one  of  the  causes. 
Begging  is  one  of  the  causes.  The  tramp  evil  is 
another,  and  so  are  improvident  marriages.     The  earli- 


1 84  The  Sphere  of  the  State. 


est  leglistors  on  the  subject  of  poor-relief,  very  clearly- 
showed  by  their  laws  prohibiting  these  evils,  that 
they  were  intent  on  preventing  pauperism  as  well  as 
relieving  those  in  distress.  Stricter  regulations  con- 
cerning the  structure  and  sanitary  condition  of  tene- 
ment houses  and  in  some  countries  compulsory 
insurance  might  also  help  to  mitigate  this  evil. 
"  There  is  great  danger,"  says  Prof.  Henry  W. 
Farnum,  in  the  Political  Science  Quarterly,  for  June, 
1888,  "that  pauper  legislation  will  become  too  me- 
chanical and  will  either  endeavor  to  help  all  who  may 
be  in  want,  regardless  of  the  cause  of  their  want,  or 
will  draw  the  line  so  fast  that  many  worthy  persons  will 
be  left  unprovided  for.  The  great  duty  of  the  govern- 
ment is  discrimination,  and  it  may  be  quite  as  neces- 
sary to  refuse  relief  where  the  ultimate  effects  of  it 
are  sure  to  be  bad,  as  to  give  it  where  they  are  not 
bad." 
^/  Granting,  then,  the  duty  of  the  State  to  provide  in 

some  way  for  its  poor,  what  should  be  the  attitude  of 
the  government  towards  private  poor-relief?  In  other 
words,  to  what  extent  should  private  charity  be  en- 
couraged by  the  State  ?  The  true  position  on  this  point 
is  that  public  assistance  should  supplement  private 
assistance,  not  supersede  it.  It  should  make  up  for 
the  deficiencies  of  private  charity,  not  take  the  place  of 
it.  The  government's  care  of  the  poor  should  depend 
on  what  is  done  by  private  effort.  It  should  expand 
or  contract  its  action  according  to  what  is  left  undone 
by  private  charity.  It  would  be  both  immoral  and 
irreligious  for  the  State  to  discourage  the  development 
of  mutual  sympathy  and  brotherly  love  among  its 
members.  No  wise  government  will  do  anything  to 
lessen  the  beneficial  effects  upon  the  whole  people  of 


The  State  in  its  Relation  to  the  Poor.      1^5 

the  cultivation  of  these  virtues  by  personal  eflfort  in 
behalf  of  those  in  distress.  Yet  the  ultimate  responsi- 
bility for  the  effects  of  any  form  of  charity  is  with 
the  State.  If  private  charity  runs  to  excess  or  is 
exercised  with  so  little  intelligence  as  to  actually 
increase  the  evils  it  desires  to  mitigate,  no  artificial 
sentiment  should  prevent  the  State  from  restraining 
it,  or,  if  need  be,  suppressing  it  altogether.  Those 
who  are  actually  engaged  in  organized  chari- 
table work  not  infrequently  complain  that  charitable 
people  are  themselves  often  a  great  hindrance  to  the 
effective  administration  of  poor-relief.  No  one 
method  is  always  the  best  method  for  the  State  to 
pursue  in  caring  for  the  poor.  What  is  best  under 
one  set  of  conditions  may  not  be  best  under  another. 
To  say  that  it  will  administer  indoor  relief  alone 
is  as  adverse  to  the  interests  of  the  State  as  to 
say  that  it  will  administer  only  outdoor  relief  In 
some  places  private  charity  may  be  unable  to  attend 
to  one  or  unable  to  attend  to  either.  In  such  cities 
as  New  York,  Philadelphia,  and  Baltimore,  it  may 
wisely  agree  to  look  after  outdoor  relief,  leaving  the 
field  of  indoor  relief  to  the  entire  care  of  the  govern- 
ment. 

But  all  relief,  however  administered,  should  look 
forward  to  the  time  when  all  necessity  of  relief  shall 
disappear.  For  pauperism  in  most  cases  is  not  merely 
an  economic  condition,  but  a  disease.  It  is  very 
largely  a  mental  and  moral  habit.  In  some  countries 
it  is  an  epidemic  and  should  be  checked  in  the  same 
way  as  we  stay  the  ravages  of  a  pestilence.  To  say 
the  evil  cannot  be  cured  is  to  abandon  the  case  at  the 
very  outset.  It  is  not  enough  to  devise  temporary 
remedies  for  the  trouble,  but  all  should  be  done  that 


1 86  The  Sphere  of  the  State. 


science  can  suggest  to  eradicate  the  cause  of  the  dis- 
ease and  prevent  its  reappearance  ;  as  another  has  well 
said,  ' '  The  fatal  mistake  in  charity,  as  indeed  in  every- 
thing else,  is  when  physical  and  temporary  ends  are 
sought  in  place  of  moral  and  eternal  ones." 


CHAPTER  XI. 

THE  GOVERNMENT  OP  CITIES. 

To  discuss  the  question  of  ttie  relation  of  tlie  State  to 
cities,  is  almost  equal  to  discussing  the  relation  of  cities 
to  themselves.  For  over  one  half  of  the  people  in  most 
civilized  lands  live  in  cities,  and  in  some  States  nearly 
two  thirds. 

The  tendency  of  people  in  our  day  to  flock  to  cities 
is  one  of  the  most  striking  results  of  modern  civilization. 
"  It  is  observed  alike  in  the  old  countries,"  says  Long- 
staff,  in  his  Studies  in  Statistics,  ' '  with  increasing  popu- 
lations, such  as  England  and  Germany  ;  in  a  country 
with  a  stationary  population,  like  France  ;  in  a  new  but 
populous  country  like  the  United  States  ;  but  perhaps 
most  striking  of  all  in  verj^  newly  settled  countries  with 
small  populations,  such  as  Victoria  and  New  South 
Wales. ' '  Among  the  chief  causes  of  this  condition  of 
things  are,  on  the  one  hand,  the  application  of  machinery 
to  agriculture  and  the  increased  use  of  meat  as  an  article 
of  diet,  both  greatly  reducing  the  demand  for  agri- 
cultural laborers ;  and,  on  the  other,  the  unexampled 
development  of  manufacturing  industries  at  the  chief 
centres,  and  the  marvellous  increase  in  the  means  of 
transportation.  Even  in  Manitoba,  Winnipeg  alone  in 
1886  contained  more  than  one  fifth  of  all  the  inhabitants 
of  the  province.     According  to  the  census  of  New 

187 


1 88  The  Sphere  of  the  State. 

South  Wales  for  1881,  57.9  per  cent,  of  the  population 
live  in  cities.  But  the  country  par  excellence  of  large 
and  rapidly  growing  cities  is  the  United  States  of 
America.  Chicago  increased  in  population  from  29,- 
963  in  1850  to  1,089,850  in  1890,  and  St.  Paul  from 
1338  to  133,156  in  the  same  period. 

But  this  marvellous  growth  of  cities  in  population  is 
not  confined  to  the  New  World  and  the  antipodes.  The 
large  towns  in  England  have  grown  about  as  much  in 
fifty  years  as  those  of  the  United  States  in  thirty ;  and 
nothing  in  America  can  equal  the  growth  of  London  in 
the  last  generation.  Even  in  France,  where  the  popu- 
lation remains  almost  stationary,  Paris  was  38.2  per 
cent,  larger  in  1886  than  in  1861,  and  Bordeaux  47.8  per 
cent.  In  Belgium,  Brussels  was  109.6  per  cent,  greater 
in  1880  than  in  1846,  and  Antwerp 91. i  percent,  greater. 
Berlin  increased  184  per  cent,  from  1858  to  1885,  and 
Hamburg  131  per  cent.  Vienna  had  132  per  cent,  more 
population  in  1880  than  in  1857,  and  Buda-Pesth  108 
per  cent. 

The  increase  in  the  annual  expenditure  of  cities  is 
equally  striking.  Even  in  1881,  Berlin's  annual  ex- 
penditure had  reached  the  sum  of  $11,000,000,  while 
Eondon  spent  annually  upwards  of  $56,000,000,  and 
Paris  over  $51,000,000.  According  to  the  United  States 
census  for  1890,  the  annual  expenditure  of  Boston  w^as 
$16,117,043  or  $35.94  per  capita,  while  that  of  the  com- 
monwealth of  Massachusetts  for  the  same  period  was 
$4,955,669.  "  Eike  ordinary  expenditures  of  the  states 
of  New  York,  Massachusetts,  Pennsylvania,  Ohio,  Mis- 
souri, and  Illinois,  the  six  largest  states  in  the  Union 
for  population,  for  one  year  amounted  in  the  aggregate 
to  $28,859,010,  while  in  the  same  period  the  ordinary 
expenditures   of  New  York  City  alone  amounted  to 


The  Government  of  Cities.  1 89 

$48,937,694."  The  total  annual  expenditure  of  $235,- 
000,000  given  b}'  the  census  of  1890  for  one  hundred 
representative  cities  of  the  United  States,  is  far  from 
the  real  total,  as  343  cities  are  entirely  left  out  of 
consideration  in  making  the  estimate. 

But  the  most  marvellous  thing  about  the  development 
of  modern  cities  is,  not  their  growth  in  population,  or 
even  in  expenditures,  but  in  indebtedness.  The  com- 
missioners appointed  by  the  Governor  of  Pennsylvania 
in  1877  to  investigate  the  condition  of  cities,  say  in 
their  report  "that  a  carefully  prepared  table,  showing 
the  increase  of  population,  valuation,  taxation,  and 
indebtedness  of  15  of  the  principal  cities  of  the  United 
States,  from  i860  to  1875,  exhibits  the  following 
results:  Increase  in  population,  70.5;  increase  in 
taxable  valuation,  156.9 ;  increase  in  debt,  270.9." 
Probably  this  ratio  of  indebtedness  would  not  hold 
true  of  the  cities  of  Europe,  but  still,  Berlin,  in  1881, 
had  an  indebtedness  of  about  $28,000,000,  Paris  of  over 
$420,000,000,  London  of  $100,000,000,  Liverpool  of 
nearly  $110,000,000,  and  New  York  of  over  $120,000,- 
000.  The  total  municipal  indebtedness  of  the  United 
States  in  1880  was  $684,348,843,  and  in  1890,  $723,950,- 
876 — an  increase  of  nearly  $40,000,000  within  the  last 
decade, — while  the  indebtedness  of  the  United  States 
decreased  over  $1,006,000,000,  and  that  of  the  states 
and  territories  over  $67,000,000,  in  the  same  period. 

If  we  should  attempt  to  trace  out  in  detail  the  pro- 
cess by  which  cities  have  come  to  their  present  status, 
we  should  find  that  the  municipalities  of  every  countr>^ 
have  had  their  own  peculiar  history,  and  that  it  is  difii- 
cult,  if  not  impo.ssible,  to  find  any  one  law  that  has 
determined  their  course  of  development. 

Almost  all  the  cities  of  antiquity  had  their  origin  in 


1 90  The  Sphere  of  the  State. 

the  desire  of  the  early  tillers  of  the  soil  to  have  some 
elevated  spot  near  their  flocks  and  farms  enclosed 
by  a  wall  where  they  could  congregate  their  families 
and  herds  in  time  of  danger,  and  combine  to- 
gether for  a  common  defence.  Within  this  wall  they 
erected  their  temples,  there  they  built  their  theatres, 
there  they  established  their  government,  and  there 
more  and  more  they  located  their  homes.  Thus  it 
came  about  that  the  city  was  the  government  and  the 
surrounding  country  was  tributary  to  the  city.  It 
often  happened  that  as  these  cities  grew  in  influence 
and  power  they  extended  their  sway  over  vast  terri- 
tories, and  even  across  distant  seas. 

The  nations  of  antiquity  were  not  nations  in  any 
such  sense  as  Germany  or  France  is  a  nation.  Babylon 
was  not  the  capital  of  the  Babylonish  empire,  or  even 
Rome  of  the  Roman  empire,  as  London  is  the  capital 
of  England,  or  Washington  the  capital  of  the  United 
States.  All  the  territory  of  the  Roman  empire  was 
tributary  to  the  city  of  Rome  and  to  its  institutions. 
When  it  fell,  the  empire  fell  also. 

The  first  country  to  obtain  municipal  freedom  after 
monarchies  had  established  their  sway  over  Europe 
was  Spain.  This  was  owing  to  the  poverty  of  the 
king,  the  weakness  of  the  nobles,  and  the  constant  fear 
of  the  Moors.  The  chartered  towns  made  treaties  with 
the  king,  by  which  the  former  obtained  fixed  laws, 
extensive  territories,  and  the  choice  of  their  own 
magistrates,  while  the  latter  received  in  return  tribute 
and  military  service.  The  destruction  of  this  freedom 
was  soon  brought  about,  however,  by  the  claim  of  the 
knights  to  a  monopoly  of  office  and  by  the  increase  in 
the  power  of  the  crown. 

Though  the  conception  of  the  borough  as  it  now  ex- 


The  Government  of  Cities.  1 9 1 

ists  in  England  was  copied  from  the  Roman  muni- 
cipium,  yet  "the  EngHsh  municipalities  are  in  no 
sense  a  legacy  from  the  imperial  times."  Almost  all 
the  English  towns  were  destroyed  at  the  time  of  the 
Norman  Conquest,  and  many  of  them  are  known  to 
have  lain  waste  for  centuries.  In  the  middle  ages  the 
guilds  for  the  most  part  controlled  the  cities.  They 
furnished  the  militia  of  that  period,  and  defended  the 
city  both  with  men  and  money  from  hostile  attacks. 
These  guilds  were  in  constant  conflict  with  their  feudal 
lords  ;  and  the  king,  wishing  to  weaken  the  power  of 
these  lords,  sided  with  the  cities.  Edward  I.,  in  order 
to  get  the  money  he  needed  as  a  free  gift,  caused  two 
deputies  to  be  sent  from  each  borough  to  Parliament 
to  consent  to  the  plans  of  himself  and  his  council.  In 
the  reign  of  Elizabeth,  however,  the  municipalities  had 
become  so  powerful  as  to  threaten  even  the  preroga- 
tives of  the  crown.  The  decision  was  therefore  ex- 
torted from  the  judges  that  the  election  of  ofiicers  for 
these  municipalities  should  be  put  into  the  hands  of  a 
select  class,  instead  of  the  whole  assembly.  As  a  re- 
sult of  this  and  other  changes,  English  municipal  cor- 
porations down  to  the  great  reform  act  of  1835  were 
close  corporations,  and  for  many  generations  the  cities 
of  England  experienced  all  the  evils  of  being  governed 
by  a  self- perpetuating  council.  This  reform  act  of 
1835  confers  the  franchise  on  the  owners  and  occupiers 
of  property  within  the  borough.  They  elect  the  coun- 
cillors from  whom  are  chosen  the  mayor  and  aldermen. 
The  councillors  hold  office  for  three  years,  one  third 
of  their  number  being  annually  renewed  by  ballot. 
The  reforms  in  England  that  swiftly  followed  this  act 
of  1835  for  the  regulation  of  municipal  corporations 
were  repeated   in   Scotland    and    Ireland,    and  their 


192  The  sphere  of  the  State. 


municipal  systems  were  reconstructed  under  similar 
schemes.  But  the  Consolidation  Act  of  1882,  after  half 
a  century  of  legislation,  swept  away  all  former  acts, 
and  has  already  proved  a  great  boon  to  municipal 
officials.  All  the  large  towns  of  England  are  now 
obliged  to  have  a  similar  organization,  and  only  in 
case  of  certain  special  needs  can  they  appeal  to  Parlia- 
ment for  additional  privileges. 

There  is  little  in  the  development  of  the  German 
cities  that  resembles  that  of  the  cities  of  England.  The 
free  cities  were  first  divided  between  the  emperors  and 
their  immediate  vassals.  In  the  twelfth  century  coun- 
cils began  to  be  elected  by  the  citizens,  who  in  the 
thirteenth  purchased  full  powers  or  drove  out  their 
vicars  and  bailiffs  by  force.  After  the  overthrow  of 
the  Hohenstaufen  family  the  German  cities  were  ena- 
bled to  break  loose  from  their  lords  and  hold  directly 
of  the  empire,  and  finally  they  were  admitted  to  the 
Diet  on  equal  terms  with  the  rest  of  its  constituents. 

When  we  turn  to  the  United  States  we  also  find  that 
its  manicipalities  have  a  history  quite  unlike  that  of 
any  other  nation.  In  the  United  States  municipalities 
are  regarded  as  a  subordinate  branch  of  the  state  gov- 
ernment. They  are  the  creatures  of  the  state,  made 
for  the  specific  purpose  of  exercising  within  a  limited 
sphere  the  power  of  the  state.  If  the  state  sees  fit  it 
may  take  away  a  city's  charter  and  govern  it  as  it  gov- 
erns the  state  at  large.  It  may  expand  or  contract  the 
powers  of  a  city,  or  destroy  its  corporate  existence 
altogether.  While  we  speak  of  city  charters,  it  is  clear 
that  the  weight  of  judicial  authority  in  this  country 
has  crushed  out  all  charter  rights  or  special  privileges 
on  the  part  of  the  city  ;  that  the  laws  organizing  a  city 
government  are  precisely  like  other  legislative  enact- 


The  Government  of  Cities.  193 

ments,  subject  to  modification,  change,  or  repeal,  as  the 
will  of  legislatures  may  direct ;  and  that  cities  may  be 
created  or  extinguished,  as  the  legislative  body  of  the 
several  states  may  determine.  A  striking  illustration 
of  the  extent  to  which  an  American  legislature  may  be 
willing  to  go  is  the  case  of  Cincinnati.  The  Ohio  Legis- 
lature authorized  that  city  to  expend  from  eighteen  to 
twenty  millions  of  dollars  in  building  a  railroad  three 
hundred  miles  long,  across  the  states  of  Kentucky  and 
Tennessee,  to  Chattanooga.  Only  one  station  on  the 
road  is  in  Ohio.  On  the  other  hand,  the  city  of  Mem- 
phis has  no  charter ;  all  its  business  and  government 
are  carried  on  by  a  commission  appointed  by  the  com- 
monwealth of  Tennessee.  Although  there  exist  impor- 
tant constitutional  limitations  upon  this  legislative 
authority  in  many  of  the  American  commonwealths, 
still  there  are  with  us  no  close  corporations,  such  as 
were  the  cities  of  the  Middle  Ages,  and  no  independent 
and  sovereign  existences,  like  the  cities  of  antiquity. 
American  municipalities  cannot  make  binding  contracts 
with  the  state.  They  can  simply  discharge  the  duties 
and  perform  the  service  imposed  upon  them  at  the 
option  of  the  state. 

From  this  brief  outline  of  the  development  and  char- 
acter of  the  principal  municipal  governments  of  the 
earth,  we  see  that  no  one  system  is  common  to  them 
all ;  that  the  relation  of  the  State  to  the  municipalities 
within  its  borders  has  greatly  varied  with  its  own  form 
of  government  and  its  own  peculiar  conditions.  Muni- 
cipal government  in  Great  Britain,  for  example,  is  not 
administered  on  the  same  theory  as  in  America,  nor  is 
Paris  governed  in  the  same  way  as  Berlin. 

This  is  as  it  should  be.     The  genius  of  each  nation 

should  work  out  its  own  methods  of  local  government. 
13 


194  T"^^<^  Sphere  of  the  State, 

While  the  State  should  never  give  up  its  rights  to  the 
supreme  control  of  the  localities  within  its  territorial 
limits,  it  should  allow  to  each  locality  that  degree  of 
self-government  that  is  consistent  with  the  good  of  the 
State  as  a  whole.  The  State  should  never  unalterably 
fix  upon  a  method.  It  should  change  its  method 
whenever  the  public  good  requires.  In  nearly  all 
civilized  lands  they  proceed  upon  this  principle.  They 
endeavor  to  keep  pace  with  the  change  in  local  condi- 
tions. They  allow  the  localities  to  possess  and  exer- 
cise all  the  power  that  the  efficient  administration  of 
their  affairs  requires.  They  have  ceased  to  regard  the 
municipal  government  as  exclusively  a  political  organi- 
zation and  have  come  to  look  upon  it  as  largely  a  busi- 
ness corporation,  formed  to  conduct  purely  local  affairs. 
The  success  of  the  arrangement  wherever  it  has  been 
adopted  is  beyond  reasonable  question. 

In  America,  however,  we  have  clung,  from  the  first, 
tenaciously  to  the  doctrine  that  the  municipality  is 
simply  a  subdivision  of  the  government  of  the  state  ; 
that  a  town  or  city  could  do  nothing  except  by  the 
authority  of  the  state,  and,  if  it  wished  in  anyway  to 
change  its  form  of  government  or  enlarge  the  sphere  of 
its  activities,  it  must  first  of  all  obtain  the  permission 
of  the  state. 

Probably  no  man  in  the  United  States  has  studied 
more  carefully  the  practical  results  of  this  system  than 
Andrew  D.  White.  In  The  Fom?n  for  December,  1890, 
he  begins  his  paper  on  ' '  The  Government  of  American 
Cities  "  with  these  words  :  "Without  the  slightest  ex- 
aggeration we  may  assert  that,  with  very  few  excep- 
tions, the  city  governments  of  the  United  States  are  the 
worst  in  Christendom — the  most  expensive,  the  most 
inefl&cient,  and  the  most  corrupt.     No  one  who  has  any 


The  Government  of  Cities,  195 

considerable  knowledge  of  our  country  and  of  other 
countries  can  deny  this." 

He  attributes  this  condition  of  affairs  to  the  ' '  evil 
theory  "  that  a  city  is  a  purely  political  organization, 
having  to  do  with  general  party  issues,  and  contends 
that  the  questions  a  city  has  to  consider  are  by  their 
very  nature  non-political,  relating  to  the  repairing  and 
lighting  of  streets  ;  to  the  erection  of  public  buildings  ; 
to  the  supply  of  water  and  proper  sanitary  arrangements; 
to  the  control  of  the  franchises,  and  the  like.  The  reason 
why  the  cities  of  Europe  are  so  much  better  managed 
than  our  own  is,  he  says,  because  they  long  ago  aban- 
doned the  notion  that  a  city  is  a  political  body,  and  have 
acted  ever  since  on  the  principle  that  a  cit)'  is  solely  a 
business  corporation,  with  which  national  issues  have 
nothing  whatever  to  do.  The  American  system  of  city 
government,  in  his  opinion,  has  always  failed,  and 
always  will  fail.  ' '  Various  forms  of  it  were  tried  in  the 
great  cities  of  antiquity  and  of  the  Middle  Ages,  espe- 
cially in  the  mediaeval  republics  of  Italy,  and  without 
exception  they  have  ended  in  tyranny,  confiscation,  and 
bloodshed. ' ' 

An  equally  distinguished  expert  in  the  matter  of  city 
government  is  the  ex-mayor  of  Brooklyn,  President 
Seth  lyow.  In  his  paper  on  ' '  The  Government  of  Cities 
in  the  United  States  ' '  he  sa3^s :  ' '  The  old  idea  in 
American  communities  was  that  safety  is  to  be  found 
at  the  hands  of  government  through  the  division  of 
power.  As  applied  to  great  cities  it  is  not  too  much  to 
say  this  idea  has  broken  down  completely.  One  reason 
for  the  breakdown  clearly  is  that  the  work  of  the  city 
is  in  fact  business  more  than  it  is  government.  .  .  . 
It  has  been  demonstrated  over  and  over  again  that 
under  any  conceivable  division  of  power  there  has  been 


1 96  The  Sphere  of  the  State. 

power  enough  left  to  do  harm,  even  though  there  has 
not  been  sufficient  positive  power  anywhere  to  accom- 
plish much  good.  ...  So  long  as  the  city  chooses 
its  own  officials  on  party  lines,  it  must  expect  to  have 
officials  with  whom  the  interests  of  the  party  is  first 
and  the  welfare  of  the  city  is  second.  It  is  not  reason-  \ 
able  to  suppose  that  men  who,  as  candidates,  have 
found  the  citizens  themselves  completely  indifferent  to 
the  city,  but  warmly  interested  in  the  party  success, 
can,  as  officials,  successfully  adopt  and  act  upon  pre- 
cisely the  opposite  view.  The  best  city  government  is 
not  to  be  had  until  in  the  minds  of  all  officials  the  city 
is  the  first  thought." 

Ex-Mayor  Hart,  of  Boston,  in  the  North  American 
Review  for  November,  1891,  calls  attention  to  the  fact 
that  while  it  is  generally  conceded  that  the  government 
of  American  cities  is  a  failure,  it  is  at  the  same  time 
admitted  by  all  that  our  system  of  national  and  state 
governments  is  a  decided  success.  This  leads  him  to 
propound  the  question,  "  If  the  national  government 
had  the  same  power  over  states  which  the  latter  have 
over  cities,  is  it  not  likely  that  our  states  would  be  in 
the  same  predicament  in  which  we  find  our  cities  ? ' ' 
The  only  true  way  to  avoid  our  present  evils  is,  in  his 
opinion,  to  bring  our  towns  and  cities  into  the  same 
relation  to  the  state  as  the  state  bears  to  the  national 
government,  and  to  make  the  constitution  of  the  Ameri- 
can city  the  counterpart  of  that  of  the  state  and  nation. 

However  we  may  regard  the  testimony  of  these  ex- 
perts on  this  matter,  we  should  not  lose  sight  of  the 
fact  that  the  government  of  American  cities  is  an 
American  problem,  to  be  solved  on  the  basis  of  Ameri- 
can facts  and  American  conditions.  We  should  not 
ignore  or  belittle  the  fact  that  in  America  a  city  is  a 


The  Government  of  Cities.  197 

portion  of  a  state.  Its  right  to  existence  as  a  city  is  a 
state  right.  All  the  power  that  it  exercises  over  the 
lives  and  property  of  its  inhabitants  it  gets  ultimately 
from  the  state.  In  order  to  have  any  government  at 
all  worthy  to  be  called  a  government,  there  must  be  a 
sovereign  unit.  This  unit  is  the  state.  To  what  ex- 
tent the  state  should  directly  exercise  this  authority  is 
purely  a  matter  of  good  judgment.  The  question  as  to 
what  the  state  ought  to  allow  a  city  to  do,  or  what 
form  of  government  it  ought  to  allow  a  city  to  adopt  in 
order  to  carry  out  the  purpose  of  its  existence  need  not 
in  any  way  involve  the  liberties  of  the  people  or  touch 
any  of  the  rights  of  citizenship. 

The  several  commonwealths  might  adopt  any  one  of 
three  courses  in  their  government  of  cities.  They 
might  give  to  cities  complete  control  of  all  their  local 
affairs,  imposing  no  restrictions  at  all  upon  their  power 
to  borrow  money,  to  construct  water- works,  gas-works, 
street-railways,  or  to  do  anything  else  they  might  choose 
to  undertake  within  or  without  their  own  territorial 
limits,  provided  only  that  they  did  not  assume  sovereign 
powers. 

They  might,  on  the  other  hand,  allow  to  their  cities 
little  or  no  self-determining  power,  but  govern  them 
directl}'  by  a  committee,  as  they  now  do  their  hospitals 
and  prisons.  History  has  abundantly  proven  that  both 
of  these  methods  are  highly  injurious  to  the  well-being 
of  the  people.  American  cities,  in  the  beginning,  had 
almost  unlimited  powers,  but  the  system  had  to  be 
generally  abandoned  because,  with  conditions  as  they 
actually  were,  the  "  city  fathers  "  could  not  be  trusted 
with  such  extensive  powers.  They  often  lacked  both 
the  intelligence  and  the  integrity  to  conduct  the  busi- 
ness of  the  city  in  such  a  manner  as  to  promote  the 


9 8  The  Sphere  of  the  StaU. 


public  welfare.  Of  course,  the  ideal  charter  for  a  city- 
is  a  carte  blanche  to  do  in  all  local  affairs  as  it  pleases, 
and  every  city  ought  to  strive  to  be  worthy  of  such 
responsibility.  But  it  would  be  extremely  unreasona- 
ble for  us  in  America,  under  present  conditions  and  in 
the  light  of  past  experience,  to  proceed  on  that  basis. 

Equally  evident  is  it  that  the  practical  abrogation  of 
governmental  powers  has  not  improved  the  condition 
of  our  cities.  Naturally  enough,  the  first  appeal  our 
dissatisfied  inhabitants  made  for  help  was  to  the  state. 
This  led  to  the  appointment  of  state  commissioners  to 
regulate  municipal  affairs.  The  state  legislatures 
passed  laws  compelling  localities  to  undertake  public 
works,  whether  they  wanted  to  or  not,  and  interfered 
generally  in  the  most  minute  matters,  and  of  a  purely 
local  character.  The  result  was  that  the  corruption 
that  was  confined  before  to  cities  spread  over  the  whole 
state,  while  the  cities  themselves  were  in  no  wise  per- 
manently benefited  by  the  change. 

A  third  course  that  the  State  might  adopt  in  its 
treatment  of  cities  is  the  mean  between  these  two  ex- 
tremes. It  might  grant  to  its  cities  a  clearly  defined 
though  ample  sphere  of  action,  and  then  leave  them  to 
work  out  their  own  destiny  in  any  way  they  saw  fit,  so 
long  as  they  kept  within  this  prescribed  limit.  Such 
home  rule  for  our  American  cities  is  the  only  rational 
method.  A  city  in  these  modern  times  should  be  verj' 
largely  a  business  corporation,  and  any  business  enter- 
prise that  does  not  have  the  control  of  its  own  affairs 
cannot  prosper.  As  matters  now  are,  no  business  of 
any  moment  can  be  transacted  by  our  cities  without  an 
enabling  act  of  a  state  legislature.  We  would  not 
think  of  hampering  a  private  corporation  with  such 
restrictions.     Instead  of  outreasoning  and  outvoting 


The  Government  of  Cities.  199 

our  opponents  in  city  affairs,  as  we  do  in  all  other  mat- 
ters, we  resort  at  once  to  a  body  of  men  who,  as  a  rule, 
pay  no  cit}"  taxes,  and  have  not  had  the  opportunity, 
even  if  they  have  the  ability,  to  acquaint  themselves 
intimately  with  the  complicated  problems  of  modern, 
city  life.  As  a  matter  of  fact,  in  the  country  at  large, 
and  in  almost  ev^ery  state  in  the  Union,  the  annual 
taxes,  the  debts,  the  public  works,  and  the  number  of 
officials  in  cities  far  exceed  those  of  the  states  them- 
selves. The  daily  life  and  happiness  of  the  people 
are  far  more  intimately  connected  with  the  local  gov- 
ernment than  the  state  and  national.  Yet  we  give  the 
fullest  power  of  self-direction  to  the  governments  that 
are  the  farthest  away  and  affect  our  interests  the  least, 
while  to  the  government  that  comes  the  nearest  and 
the  oftenest  to  otu"  hearth-stones  we  allow  practically 
no  self-determining  power  at  all. 

The  first  thing,  therefore,  to  be  done  in  the  further- 
ance of  better  municipal  government  is  to  have  in 
every  state  constitution  a  prohibition  against  allowing 
the  legislature  constantly  to  interfere  in  municipal 
affairs.  Such  interference  is  almost  always  actuated 
by  purely  party  considerations  or  personal  interests. 
If  one  party  has  elected  the  city  council  and  the  other 
the  ma^'or,  and  the  charter  says  the  council  shall  ap- 
point and  remove  the  officials,  the  party  having  the 
maj'or  can  apply  to  the  legislature  to  have  the  charter 
amended  so  as  to  give  the  power  of  dispensing  patron- 
age to  him.  If  the  legislature  is  of  the  same  party  as 
the  mayor,  and  is  confident  that  the  success  or  non- 
success  of  the  party  in  the  state  depends  on  the 
possession  of  the.se  municipal  offices  and  the  control 
of  the  annual  expenditures,  they  will  probably  get 
the  amendments  desired.     The  Tweed  tartar  obtained 


200  The  Sphere  of  the  State. 


from  the  legislature  of  New  York  in-  1870  is  an  illus- 
tration of  this  method  of  procedure.  It  .stripped  the 
common  council  of  all  legislative  functions  and  of 
all  power  of  appointing  and  removing  city  officials, 
placing  almost  unlimited  control  in  the  hands  of  the 
mayor  who  had  been  chosen  to  that  office  by  the 
Tweed  influence.  The  result  was  that  "during  the 
year  1870  these  public  officers  of  the  City  of  New  York 
stole  not  less  than  $15,000,000  outright,  and  the 
amount  could  not  have  aggregated  less  than  $25,000,- 
000  or  $30,000,000.  If  to  the  amount  stolen  outright 
is  added  the  amount  extravagantly  and  wastefully  ex- 
pended in  sinecure  offices,  the  performance  of  unneces- 
sary- work,  fraudulent  contracts,  and  what  not,  it  is 
safe  and  within  the  mark  to  say  that  one  half  of  the 
city  debt  of  $130,000,000  represents  absolute  plunder." 
If  the  state  constitution  had  forbidden  any  interference 
on  the  part  of  the  legislature  with  the  chartered  rights 
of  its  cities  except  by  vote  of  two  thirds  of  all  the  mem- 
bers elected  to  each  legislative  chamber  and  for  two 
successive  sessions,  as  was  recommended  by  the  Til- 
•  den  commission  of  1877,  such  a  wreckless  waste  of  the 
public  moneys  might  have  been  greatly  lessened,  if 
not  prevented  altogether. 

Every  one  of  our  states  should  have  a  general  law 
for  the  incorporation  of  its  cities,  and  after  a  city  has 
once  come  into  the  possession  of  its  chartered  rights  by 
compliance  with  this  law,  the  legislature  should  be  as 
impotent  to  interfere  with  its  internal  affairs  as  with 
those  of  a  bank  or  a  book-store.  If  a  city  violates 
any  of  the  provisions  of  its  charter  or  disregards  any 
of  the  statutes  of  the  state,  it  should  be  dealt  with 
in  the  courts  just  as  any  other  corporate  body  would 
be  that  was  guilty  of  similar  misconduct. 


The  Government  of  Cities.  201 

It  is  hard  to  see  why  the  recommendations  of  the 
Tilden  commission  on  this  matter  of  non-interference 
should  not  be  adopted  by  every  state  in  the  Union. 
They  make  the  legislature  powerless  to  change  the 
form  of  organization,  to  redistribute  the  powers,  alter 
the  terms  of  ofl&ce,  or  in  any  way  effect  the  local  ex- 
penditures of  a  city  government  unless  the  board  of 
aldermen  and  board  of  finance,  together  with  the 
mayor,  request  it ;  or  in  case  the  city  authorities  fail  to 
thus  agree  in  their  application,  making  the  act  requir- 
ing such  a  change  receive  the  sanction  of  a  two  thirds 
vote  of  two  successive  legislatures. 

With  these  constitutional  limits  put  upon  the  power 
of  the  legislature  to  suppress  or  alter  a  city's  charter, 
the  next  most  important  matter  for  our  states  to  con- 
sider is  whether  or  not  they  shall  prescribe  in  the 
charter  the  form  of  government.  It  must  be  allowed 
that  the  sphere  of  municipal  governmeijt  differs  widely 
from  that  of  the  state  or  nation.  Most  of  the  problems 
it  has  to  solve  are  purely  local  and  are  most  intimately 
connected  with  the  daily  life  of  each  family  and  indi- 
vidual. Obviously,  however,  it  is  a  great  advantage 
to  the  state  in  the  administration  of  its  government 
and  to  the  cities  themselves  in  their  mutual  intercourse 
to  have  in  general  one  common  form.  It  seems  reason- 
able therefore  to  hold  that  the  state  should  provide  the 
general  plan  of  government,  leaving  to  the  locality  the 
determination  of  all  details. 

But  there  are  certain  matters  in  every  city  that  are 
pre-eminently  matters  of  state.  The  efficient  adminis- 
tration of  the  state  government  requires  that  the  neces- 
sary officers  for  attending  to  these  matters  should  be 
provided  for  in  every  charter.  Foremost  among  these 
provisions  should  be  a  Board  of  Finance.     This  board 


!02  The  Sphere  of  the  State. 


should  be  made  to  work  in  harmony  with  the  state 
Board  so  that  the  method  of  taxation  adopted  b}-  the 
state  shall  be  carried  out  in  every  city,  the  mode  of 
assessing  and  collecting  the  taxes  being  made  one  and 
the  same  through  the  entire  limits  of  the  state.  When 
a  state  confers  the  right  to  tax  upon  a  locality  it  is 
bound  to  see  that  the  right  is  not  abused,  that  every 
member  of  the  state  in  whatever  part  of  this  territory 
he  may  choose  to  reside  is  not  unjustly  treated.  The 
best  way  to  do  this  is  through  this  local  Board  of 
Finance  whose  chief  duty  it  should  be  to  see  that  the 
state  regulations  on  this  subject  are  properly  observed, 
and  that  no  local  tax  is  levied  that  comes  into  collision 
with  them. 

The  local  Board  of  Finance  should  also  be  required 
to  make  an  annual  report  to  the  state  of  the  city's  finan- 
cial status,  so  that  all  may  know  how  near  the  expen- 
ditures have  come  to  the  legal  limit.  No  city  should 
be  allowed  to  contract  debts  exceeding  in  amount  its 
total  valuation,  or  repudiate  its  debts  by  throwing 
up  its  charter  as  some  have  done  in  the  past  and 
others  are  likely  to  do,  if  left  unchecked,  in  the 
future. 

Provision  should  also  be  made  in  the  charter  for  a 
Board  of  Education.  The  self-preservation  of  the  state 
and  the  perpetuation  of  its  institutions  reqiiire  a  system 
of  education  that  shall  be  accessible  and  free  to  all  its 
members.  The  locality  does  not  educate  for  itself  alone, 
but  for  the  good  of  the  whole  state.  The  character  of 
the  education  that  is  provided  for  its  members  should 
therefore  be  determined  by  the  state.  The  local  Board 
of  Education  should  stand  in  such  relation  to  the 
state  Board  that  all  the  requirements  of  the  state  shall 
by  means  of  it  be  brought  to  their  full  realization.     An 


The  Government  of  Cities.  203 

annual  report  should  be  required  from  this  Board  of 
the  actual  facts. 

There  should  be  also  in  the  charter  a  provision  for 
a  Board  of  Police.  In  every  part  of  the  state  there 
should  exist  officers  empowered  with  the  dut}-  of  de- 
tecting and  punishing  crime.  No  city  should  be  allowed 
to  shirk  its  task  in  this  matter,  nor  should  it  be  allowed 
to  throw  the  burden  of  apprehending  and  punishing  its 
wrong-doers  upon  its  neighbors  by  making  easy  the 
way  of  escape  from  its  own  borders  to  other  localities. 
The  local  Board  of  Police  should  be  held  responsible  by 
the  state  for  the  proper  administration  of  justice  upon 
all  those  who  violate  its  statutes. 

There  ought  also  to  be  in  every  city  a  Board  of 
Health.  The  care  of  the  public  health  is  just  as  truly 
a  concern  of  the  state  as  public  education.  The  sani- 
tary condition  of  a  city  is  often  of  far  more  than  local 
interest ;  contagious  diseases  may  arise  that  will  sweep 
away  whole  sections  of  the  state  unless  held  in  check 
where  they  originate.  The  quality  of  the  food  we  eat, 
since  so  much  of  it  comes  to  us  from  distant  quarters, 
is  also  in  a  large  measure  properlj^  subject  to  the  in- 
spection of  the  state.  The  laws  concerning  the  licens- 
ing of  physicians,  apothecaries,  surgeons,  and  the  like 
should  be  state  laws,  and  the  quarantine  regulations 
should  be  one  and  the  same  for  all.  Every  city  should 
be  held  responsible  to  the  state  for  the  proper  observ- 
ance of  these  and  all  similar  regulations  for  the  main- 
tenance of  the  public  health.  The  local  Board  should 
be  charged  with  the  duty  of  making  a  report  to  the 
state  Board  of  the  conditions  of  affairs  in  this  respect 
as  often  as  the  public  good  requires.  If  to  these  four 
Boards  we  add  a  Board  of  Charities,  we  have  provided 
for  the  state  all  the  means  that  are  essential  to  the 


204  "^^^^  sphere  of  the  State. 

efficient  administration  of  its  municipal  affairs.  No 
righteous  government  will  fail  to  make  timely  and  ade- 
quate provision  for  the  poor.  They  have  been  present 
in  every  age  and  nation  in  the  past  and  so  long  as  mis- 
fortune, sickness,  and  vice  remain  upon  the  earth, 
they  will  probably  continue.  Their  proper  treatment 
is  not  purely  a  local  matter,  but  primarily  a  duty  of 
the  whole  body-politic.  The  local  Board  of  Charities 
should  act  in  harmony  with  the  state  Board  and  be 
held  responsible  for  the  proper  observance  on  the  part 
of  the  locality  of  the  mandates  of  the  whole  body- 
politic. 

The  exact  time  for  the  selection  of  the  members  of 
these  Boards  and  the  manner  of  making  the  selection 
need  not  be  prescribed  by  the  state.  This  may  well 
be  left  to  the  inhabitants  themselves.  No  one  w^ay  of 
making  the  choice  has  been  found  to  be  pre-eminently 
desirable  in  the  past  and  it  will  probably  not  be  found 
in  the  future.  Cities  have  tried  electing  their  officers 
on  general  tickets,  on  district  tickets,  and  on  ward 
tickets.  They  have  chosen  them  to  serve  with  pay  and 
without  pay.  But  no  system  has  permanently  given 
satisfactory  results.  The  inhabitants  of  the  city  should 
be  left  free  to  change  from  one  system  to  another  as 
they  themselves  deem  expedient,  both  as  to  whom 
these  officers  shall  be  and  as  to  their  tenure  of  service. 
The  state  should  guarantee  to  every  municipality  it 
allows  to  exist  within  its  borders  the  most  complete 
home  rule  in  this  matter.  But  if  they  fail  to  use  the 
liberty  conferred  upon  them  the  state  should  not  be 
made  to  suffer.  If  vacancies  as  they  occur  are  not  pro- 
vided for,  the  governor  should  fill  them  by  his  own 
appointment  until  they  are. 

A  question  of  great  moment  at  present  is  whether  a 


The  Government  of  Cities.  205 

city  should  be  allowed  to  manufacture  its  own  gas,  own 
its  own  water-works,  operate  its  own  street-car  lines, 
or  engage  in  any  other  kind  of  business  when  the  terms 
of  the  charter,  fairly  interpreted,  do  not  confer  upon  it 
the  power.  The  proper  answer  to  the  question  is  that 
this  is  a  matter  with  which  the  government  of  the  state 
should  have  nothing  to  do.  It  should  be  left  entirely 
to  the  option  of  the  city  itself.  The  people  of  anj- 
locality  in  their  organic  capacity  as  a  municipality 
should  have  just  the  same  right  to  form  a  corporation 
for  the  transaction  of  any  business  as  is  possessed  by 
individuals.  The  only  limitations  that  should  be  put 
upon  their  actions  are  those  that  are  put  upon  all  busi- 
ness corporations.  That  cities  generally  pay  far  more 
for  their  gas  and  water  than  there  is  any  need  of  can 
hardly  be  doubted  ;  that  they  give  away  the  franchises 
for  nothing  or  a  mere  trifle  when  they  might  realize  for 
them  a  perpetual  revenue  of  thousands  of  dollars  is 
equally  certain.  But  this  abuse  of  opportunity  is  a 
local  matter.  The  state  is  not  at  all  responsible  for  it. 
Its  correction  should  be  regarded  as  something  entirely 
local  with  which  the  state  has  nothing  whatever  to  do. 
If  experience  has  taught  us  anything  it  is  that  with 
our  modern  economic  conditions  the  chief  function  of 
a  city  ought  to  be  a  business  function,  that  the  interests 
of  the  people  can  not  be  attended  to  as  they  ought, 
unless  the  city  ofl&cials  make  business  and  not  ' '  poli- 
tics ' '  their  chief  concern.  We  may  go  even  so  far  as 
to  say  with  President  Elliott:  "Before  municipal 
government  can  be  set  right  in  the  United  States 
municipal  service  must  be  made  a  life  career  for  intelli- 
gent and  self-respecting  young  men."  But  this  again 
is  a  local  affair,  not  an  affair  of  the  state.  How  cities 
should  govern  themselves  is  not  the  topic  of  this  paper. 


So6  The  Sphere  of  the  State. 

We  are  considering  simply  the  question,  How  should 
the  state  treat  cities  ?  and  we  answer  the  question  by- 
saying  that  the  state  should  prescribe  the  essentials  of 
its  form  of  government  so  that  it  may  be  in  substantial 
accord  with  its  own  form  and  may  without  unnecessary 
friction,  act  as  its  representative  in  administering  its' 
statutes.  In  addition  to  determining  the  form  of 
government  the  state  should  also  require  each  city  to 
establish  the  local  Boards  already  described  as  in  part 
adjuncts  to  its  own  Boards.  But  purely  local  affairs  it 
should  treat  as  purely  local.  The  responsibility  for  a 
good  local  government  or  a  bad  government  should  be 
made  to  rest  upon  the  inhabitants  themselves.  Con- 
stant state  interference  ought  no  longer  to  be  possible. 
The  people  of  each  locality  should  be  compelled  in  the 
main  to  govern  themselves.  No  local  faction  should 
have  the  opportunity  of  making  a  scape-goat  of  the 
state  whenever  they  get  into  trouble,  nor  should  the 
officers  of  the  state  have  the  power  to  interfere  in  local 
matters  whenever  they  imagine  the  interests  of  their 
party  wovdd  be  advanced  by  so  doing. 


CHAPTER  XII. 

THE  FAMILY  FROM  THE  STANDPOINT  OF  THE  STATE. 

The  three  institutions  of  which  every  man  is  born  a 
member  are  the  Family,  the  State,  and  the  Church.  By 
this  I  mean  that  every  person  is  connected  by  an  indis- 
soluble bond  to  his  parents,  to  his  fellows,  and  to  God. 
Do  what  he  will,  he  cannot  escape  from  these  relations. 
Fl}'  to  whatever  corner  of  the  earth  he  chooses,  he  is 
still  a  member  of  a  Family,  a  citizen  of  a  State,  and 
a  subject  of  an  Almighty  Power. 

The  only  way  he  can  break  away  from  the  Family 
into  which  he  first  enters  is  by  the  formation  of  a  new 
Family.  The  only  wa}^  he  can  cease  to  be  a  member 
of  one  State  is  by  becoming  a  citizen  in  another  ;  and 
no  one  by  any  change  of  place  can  ever  pass  out  from  ^ 
under  the  jurisdiction  of  his  Maker. 

Strictly  speaking  there  is  no  such  thing  as  a  man 
without  a  family,  or  a  man  without  a  country,  or  a  man 
without  a  church.  But  because  a  man  is  a  man,  he 
may  ignore  these  relations  and  strive  to  act  as  though 
they  did  not  exist.  Yet  his  conduct  will  not  in  the 
slightest  degree  affect  their  continuance,  and  all  his 
efforts  to  escape  from  the  obligations  they  impose  upon 
him  will  be  to  no  purpose.  These  three  institutions 
are  so  intimately  related  to  one  another  that  any  injury 
to  one  is  an  injury  to  all,  and  any  good  that  comes  to 

207 


2o8  The  Sphere  of  the  State. 


one  is  shared  by  all.  They  rise  or  fall  together. 
Without  the  Family  there  would  be  no  State,  and 
without  the  Family  and  the  State  there  would  be  no 
Church.  If  there  were  but  one  Family  in  existence 
it  would  be  at  the  same  time  both  State  and  Church. 

The  Family  is  the  nursery  of  the  State.  The  char- 
acter of  the  Family  determines  the  character  of  the 
State.  The  more,  therefore,  the  State  magnifies  the 
Family  the  more  it  contributes  to  its  own  elevation 
and  advancement,  and  the  more  it  belittles  the  family 
the  more  rapidly  it  hastens  its  own  degeneracy  and 
ruin. 

It  is  a  baseless  theory  of  certain  philosophers  that 
the  State  at  its  first  inception  had  to  do  with  individuals 
only.  On  the  contrary  it  found  itself  in  the  presence 
of  the  Family.  The  unit  it  had  to  recognize  at  its 
beginning  was  an  agglomeration  of  individuals.  The 
Family  is  not  only  necessary  to  the  formation  of  the 
State,  but  its  continuance  is  dependent  on  the  continu- 
ance of  the  Family.  The  Family  preserves  and 
developes  all  its  individual  members.  It  cares  for 
their  earliest  infancy  and  provides  for  the  nurture  of 
their  minds  as  well  as  their  bodies.  Only  through  the 
Family  can  they  be  fitted  for  the  rights  and  duties  of 
full  membership  in  the  State. 

All  attempts  on  the  part  of  the  State  to  abolish  the 
Family  or  to  lessen  its  significance  can  only  result  in 
its  own  degradation.  Plato,  by  exclusively  concen- 
trating his  thought  upon  the  unity  of  the  State,  was 
led  in  his  famous  Republic  to  advocate  the  view  that 
the  abolition  of  the  Family  would  strengthen  the  love 
of  country  and  thus  be  a  great  blessing  to  the  State. 
But  such  an  illusion  is  hardly  possible  in  our  time  and 
among  a   Christian  people.     The  true  home  is  the 


The  Family.  209 

hearth-stone  of  a  true  love  of  humanity  and  the  greatest 
enemy  of  a  cruel  and  narrow  love  of  self.  There  one  is 
taught  to  share  his  joys  and  sorrows  with  others,  and 
to  help  bear  the  burdens  of  the  weak.  There  the  habit 
of  devotion  is  best  cultivated,  and  he  who  has  been 
taught  to  hold  the  Family  name  most  in  honor  will  not 
be  wanting  when  heroes  are  called  for  to  place  their 
lives  in  jeopardy  for  the  good  of  the  State. 

It  is  around  the  Family  fireside  that  one  first  gets  his 
conception  of  human  brotherhood  without  which  there 
can  be  no  just  conception  of  the  State.  The  true  way 
for  the  State  to  cultivate  the  sentiment  of  fraternity 
among  its  members  is  not  by  treating  them  as  separate 
and  individual  existences.  On  the  contrary  it  should 
look  upon  them  as  first  of  all  members  of  a  Family, 
and  do  everything  in  its  power  to  develop  and 
strengthen  those  affections  which  first  originate  and 
acquire  their  precise  meaning  in  the  bosom  of  the 
Family.  It  is  not  a  mere  accident  that  even  in  the 
most  highly  civilized  countries,  where  the  opportuni- 
ties for  cultivating  the  purest  affections  and  pursuing 
the  most  unselfish  vocations  are  the  greatest  and  best, 
the  unmarried  men  and  women  are  ordinarily  regarded 
as  the  most  self-centred  and  egoistic  of  all  the  nation. 

The  attempts  that  have  been  made  in  history  to 
abolish  the  Family  have  always  been  ephemeral,  and, 
while  they  lasted,  most  injurious  to  the  well-being  of 
the  State.  ' '  The  absence  of  the  family, ' '  says  another, 
"pitilessly  sacrificed,  at  Lacedemonia,  plunged  the 
citizens  into  the  most  shameless  vices,  destroyed  arts 
and  literature,  and  changed  a  free  city  into  a  sort  of 
military  convent."  The  perverted  ideas  of  the  Family 
that  were  held  by  the  Greeks  and  Romans  exerted  a 
most  potent  influence  in  bringing  about  the  dissolution 


2 1  o  The  Sphere  of  the  State. 


of  the  State.  The  cruelties  and  vices  that  were  prac- 
tised by  the  children  as  they  became  in  their  turn  mas- 
ters of  the  State,  they  had  first  seen  exhibited  in  the 
ancestral  household.  The  feudal  State  was  the  image 
of  the  feudal  Family.  No  State  at  all  worthy  of  the 
name  can  ever  arise  out  of  the  abyss  of  degradation 
into  which  polygamy  has  plunged  the  Family  of  the 
Orient. 

The  truly  civilized  and  progressive  nations  of  to-day 
are  those  where  the  Christian  conception  of  the  Family 
is  most  honored,  and  where  the  greatest  efforts  are 
being  put  forth  to  establish  it  upon  a  secure  and  lasting 
foundation.  For  any  departure  from  this  conception 
of  the  Family  involves  a  corresponding  departure  from 
the  true  conception  of  the  State  and  hastens  its  decay 
and  ruin. 

Such,  then,  being  the  importance  of  the  Family  to 
the  existence  and  welfare  of  the  State,  the  State  can  not 
too  carefully  guard  the  formation  of  the  Family  or  too 
securely  guarantee  to  those  who  form  it  its  protect- 
ing power.  The  means  for  the  founding  of  a  Family 
is  marriage  ;  and  while  the  State  should  encourage 
marriage  in  every  reasonable  way,  it  should  not  allow 
a  Family  to  be  formed  entirely  at  the  option  of  the 
parties.  For  the  public  have  a  right  and  an  interest 
in  the  matter  as  really  as  the  parties.  They  should 
first  be  required  to  obtain  the  public  consent  in  order 
that  the  establishment  of  the  new  Family  may  be  duly 
recognized  and  its  security  and  peace  fully  assured. 

From  the  standpoint  of  the  Church  of  Rome  marriage 
is  a  sacrament,  and  throughout  all  Christendom  it  is 
usually  attended  by  religious  rites.  But  in  the  eye  of 
the  State  it  is  simply  a  civil  contract  "evidenced  in 
words  prescribed  by  law,  or  by  law  counted  sufl&cient." 


The  Family.  2 1 1 

Marriage  is  the  union  of  a  man  and  woman  in  the  legal 
relation  of  husband  and  wife.  The  institution  is  one 
of  the  leading  bases  of  law,  and  it  is  probable  that  the 
different  S5'Stems  of  law  first  began  to  develop  around 
this  as  a  centre.  For  in  some  places  the  old  names  for 
"law"  and  "marriage"  are  interchangeable.  Both 
history  and  sound  reasoning  alike  teach  us  that  neither 
of  them  are  the  inventions  of  legislators,  but  are  both 
the  necessary  products  of  human  social  life. 

Polygamy  cannot  establish  a  real  family.  For  where 
maternal  rivalry  between  the  children  of  a  common 
father  may  come  in  discord  is  inevitable.  To  make 
the  wife  merely  an  uninterested  slave  destroys  the  home 
and  annihilates  human  liberty  and  family  honor.  From 
a  political  as  well  as  an  economic  and  moral  standpoint 
polygamy  is  a  debasement  of  marriage  and  monogamy 
its  only  ilormal  and  true  expression. 

The  State,  therefore,  having  such  great  interests  at 
stake  in  the  matter,  should  regulate  the  conditions  of 
marriage.  It  should  not  allow  persons  who  are  incom- 
petent to  make  any  other  valid  contract  to  make  this. 
For  marriage  is  the  most  important  and  wide-reaching 
in  its  influence  for  good  or  for  ill  of  all  contracts,  both 
upon  the  individual  and  the  community.  The  State 
should  not  take  upon  itself  the  obligation  to  sustain 
and  defend  in  its  courts  any  contract  the  conditions  of 
which  it  does  not  itself  approve,  audit  should  allow  no 
contract  under  any  conditions  to  be  formed  that  places 
the  well-being  of  the  body-politic  in  peril. 

It  should  regard  as  null  and  void  any  marriage 
effected  by  fraud  or  violence.  Only  on  the  basis  of  the 
free  consent  and  choice  of  the  parties  concerned  should 
it  give  its  sanction.  For  marriage  is  a  double,  not 
a  single  contract.     It  is  first  of  all  a  private  contract 


2 1 2  The  Sphere  of  the  State. 


between  two  persons,  and  then  a  public  contract 
between  the  State  and  the  two  persons  joined.  Both 
are  necessary  to  make  a  valid  marriage. 
.  The  State  should  not  permit  two  persons  to  marry- 
where  the  offspring,  if  any,  are  almost  certain  to  be  a 
burden  to  the  State.  The  continuation  of  the  species 
is  one  of  the  prime  objects  of  marriage.  A  celebrated 
modern  jurist  in  his  definition  of  marriage  makes  it  the 
first  object.  "  Marriage,"  he  says,  "  is  the  association 
of  man  and  woman,  who  unite  to  perpetuate  their 
species,  to  mutually  help  one  another  to  bear  the  bur- 
dens of  life,  and  to  share  a  common  destiny  !  "  A 
childless  marriage  implies  such  an  abnormal  and  un- 
natural condition  of  things  that  the  State  should  not 
recognize  it  as  normal,  but  should  legislate  on  just  the 
opposite  ground.  In  its  laws  concerning  marriage  it 
should  do  all  it  can  to  advance  and  perfect  the'race,  and 
to  prevent  by  all  means  in  its  power  its  deterioration 
and  ultimate  ruin.  To  this  end  it  should  not  allow  the 
marriage  of  persons  near  of  kin.  For  it  is  found  to  be 
almost  universally  the  fact  that,  where  the  parents  are 
closely  related  by  blood,  the  children  are  physically  and 
mentally  degenerate.  All  nations  have  found  it  neces- 
sary by  positive  legislation  to  put  a  check  upon  such 
incestuous  marriages. 

It  should  also  prevent  the  marriage  of  persons  who 
inherit  and  would  transmit  an  incurable  disease.  No 
private  desire,  however  strong,  should  be  allowed  to 
override  the  good  of  the  State  and  the  well-being  of  the 
children  in  this  matter.  No  persons  should  be  per- 
mitted to  bring  into  the  world  with  the  approval  of  the 
State  those  whose  lives  are  almost  certain  to  be  passed 
in  suffering  and  wretchedness  and  to  end  in  a  prema- 
ture death,  or  in  other  ways  to  be  a  burden  and  re- 


The  Family.  213 

proach  to  their  fellows.  Consumptives,  insane  persons, 
incorrigible  criminals,  and  inveterate  drunkards  clearly 
belong  to  this  class.  Of  course  there  is  now  and  then 
an  exception,  but  as  a  rule  the  physical  and  mental 
ability  of  the  child  is  determined  for  him  by  his  parents. 
The  State  is  the  onlj^  power  that  can  in  anj^  effective 
way  guard  the  natural  rights  of  unborn  generations  in 
this  matter.  The  interests  involved  are  so  vital  to  the 
future  welfare  of  the  State  that  there  is  always  great 
danger  in  every  generation  of  giving  the  subject  too 
little  concern. 

It  is  a  singular  fact  that,  notwithstanding  the  exist- 
ence of  the  institution  from  the  very  dawn  of  history,  it 
is  still  an  unsettled  question  both  in  England  and  the 
United  States  as  to  what  constitutes  a  valid  marriage, 
whether  conformity  to  the  law  is  necessary  or  the  mere 
consent  of  the  parties  is  sufficient.  When  the  validity 
of  a  marriage  by  mere  consent  came  up  before  the  Eng- 
lish House  of  Lords  not  long  ago,  a  tie  vote  prevented 
a  decision,  and  when  the  same  question  came  before 
the  Supreme  Court  of  the  United  States,  Chief  Justice 
Taney  in  giving  the  decision  said  the  given  case  was 
decided  on  other  grounds,  for  "upon  this  point  the 
Court  is  equally  divided,  and  no  opinion  can  be  given." 
The  trend  of  decisions  in  America  is,  however,  in  the 
direction  of  the  conclusion  of  Chancellor  Walworth, 
' '  that  any  mutual  agreement  between  the  parties  to  be 
husband  and  wife  in  presenti,  especially  where  it  is 
followed  by  cohabitation,  constitutes  a  valid  and  bind- 
ing marriage,  if  there  is  no  legal  disability  on  the  part 
of  either  to  contract  matrimony."  The  courts  in  eigh- 
teen .states  and  in  the  District  of  Columbia  clearly  hold 
that  marriage  by  simple  consent,  without  license  or 
celebration,  is  valid. 


2 1 4  The  Sphere  of  the  State. 

This  is  not  as  it  should  be.  It  tends  to  the  demoral- 
ization of  the  Family  by  belittling  the  importance  of 
marriage,  and  making  it  exceedingly  difficult,  if  not 
impossible,  to  determine  in  many  cases  the  actual  rela- 
tion of  the  parties. 

On  the  continent  of  Europe  they  have  recovered 
from  their  former  looseness  in  regard  to  the  laws  of 
marriage  and  have  begun  to  realize  the  idea  of  family 
law  as  an  organic  whole.  They  now  have  a  carefully 
prepared  scientific  system  which  in  some  cases,  as  in 
Germany  and  Switzerland,  is  the  work  of  eminent  pro- 
fessors of  law.  The  legal  age  of  marriage,  the  degrees 
of  consanguinity,  the  consent  of  parents,  the  publica- 
tion of  intention,  the  locality  of  the  marriage,  and  the 
most  careful  registration  are  almost  invariably  de- 
manded by  the  present  marriage  laws  of  Europe.  But 
in  the  United  States  the  old  Colonial  confusion  on  the 
subject  still  continues.  We  have  no  scientific  or  har- 
monious system.  In  many  states  and  territories  the 
family  may  be  formed  or  dissolved  in  the  most  careless 
and  irresponsible  manner. 

It  is  a  noteworthy  fact  that  neither  the  national  nor 
any  state  constitution  has  any  provision  touching  the 
subject.  Only  two  or  three  states  make  any  attempt 
to  restrict  the  marriage  in  another  state  of  their  own 
citizens  contrary  to  their  own  statutes.  Sixteen  states 
make  no  provision  at  all  as  to  the  age  at  which  minors 
may  marry.  In  many  states  no  license  or  certificate  is 
required.  Of  these  the  great  state  of  New  York  is 
one. 

Only  a  very  few  states  make  marriage  registration 
compulsory,  and  only  twenty-one  states  require  any 
report  to  be  made  to  a  state  officer  on  the  subject. 
Carrol  D.  Wright  in  his  "  Report  on  Marriage  and  Di- 


The  Family.  2 1 5 

vorce  in  the  United  States"  (Feb.,  1889),  affirms  of 
these  returns  that  they  "as  a  rule,  are  compiled  so 
carelessly  as  to  be  nearly  worthless. ' '  He  puts  it  none 
too  strongly  when  he  says  :  ' '  The  legal  status  of 
parties,  their  property,  the -legitimacy  of  children,  are 
jeopardized  in  man}-  instances  by  the  reckless  manner 
in  which  records  are  kept." 

Dr.  Mulford,  the  author  of  The  Nation,  was  so  im- 
pressed with  the  need  of  a  radical  change  in  this  matter 
that  he  did  not  hesitate  to  express  the  opinion  that 
the  1 6th  amendment  to  the  Constitution  of  the  United 
States  ought  to  be  on  the  Family.  He  saw,  as  he 
thought,  that  marriage,  polygamy,  divorce,  and  other 
similar  problems  are  so  related  that  nothing  short  of  a 
constitutional  provision  will  ever  meet  the  exigencies 
of  the  case. 

Be  this  opinion  right  or  wrong,  it  is  certainlj-  true 
that  if  ever}^  commonwealth  would  compel  the  registra- 
tion of  marriages,  a  great  gain  would  be  made  in  a 
matter  of  the  highest  moment  to  the  welfare  of  all 
parties.  It  ought  to  be  possible  in  this  country  as  in 
Europe  to  trace  a  marriage  from  its  beginning  to  its 
end.  It  is  a  reproach  to  our  civilization  that  the  evi- 
dences of  marriage  are  so  wretchedly  guarded  in  almost 
every  state  of  the  Union,  and  that  libels  and  other 
papers  can  so  easily  be  taken  from  the  files  of  the  courts 
and  used  in  such  a  disreputable  manner  for  the  annihi- 
lation of  the  home. 

How  the  fact  of  marriage  should  affect  the  personal 
and  property  rights  of  the  married  is  a  matter  of  great 
importance  to  the  welfare  of  the  Family  and  the  pros- 
perity of  the  State.  "  There  are  no  regulations,"  says 
Kent,  ' '  on  any  other  branch  of  the  law,  which  affect 
so  many  minute  interests,  and  interfere  so  deeply  with 


1 6  The  Sphere  of  the  State. 


the  prosperity,  the  honor,  and  happiness  of  private 
life."  Yet  in  no  part  of  our  country  are  the  laws  on 
the  subject  definitely  determined  or  framed  with  much 
reference  to  reason  and  justice. 

The  principle  of  common  law  at  the  basis  of  many 
of  our  present  regulations  Blackstone  states  as  follows  : 
"  By  marriage,  the  husband  and  wife  are  one  person  in 
law,  that  is,  the  very  being  or  legal  existence  of  the 
woman  is  suspended  during  marriage,  or  at  least  is 
incorporated  and  consolidated  into  that  of  the  husband ; 
under  wing,  protection,  and  cover  she  performs  every- 
thing ;  and  is  therefore  called  in  our  law-french  a 
femme  covert. ' ' 

The  error  in  this  theory  is  not  only  in  regarding 
husband  and  wife  as  in  all  respects  legally  one,  but  the 
husband  as  that  one.  This  feudal  idea  is,  however, 
a  great  advance  over  anything  before  it  in  history. 
In  the  East  from  the  earliest  time  a  woman  has  always 
been  the  property  and  slave  of  her  husband.  In 
Greece  the  domestic  tyranny  of  the  husband  over  the 
wife  was  far  less  than  in  the  Orient,  but  neither  Sappho 
nor  Aspasia,  the  two  most  famous  women  of  Greece, 
had  any  conception  of  a  home.  The  Roman  matron, 
it  is  true,  presented  a  most  worthy  type  of  female 
dignity  and  virtue,  but  she  was  in  no  sense  the  equal 
of  her  husband. 

The  feudal  system  gave  to  woman  the  unspeakable 
advantage  of  at  least  a  nominally  Christian  marriage. 
The  spirit  of  chivalry  that  it  cultivated  was  in  nothing 
more  useful  and  beneficent  than  in  the  profound  respect 
and  tender  regard  that  it  inspired  for  woman.  But  the 
feudal  system  fell  far  short  of  giving  to  woman  her 
true  place  in  marriage.  In  this  nineteenth  century  the 
world  has  outgrown  the  notion  that  a  woman  loses  her 


The  Family.  2 1  7 

personal  rights  hy  marriage.  She  should  be  held  sub- 
ject to  the  criminal  and  civil  law  the  same  as  her 
husband,  and  should  be  allowed  to  hold  and  transfer 
her  own  property-  in  the  married  state  as  before  or 
after  it.  It  is  an  antiquated  notion  that  a  crime  of  any 
sort  committed  b}'  a  wife  is  prima  facie  committed  at 
the  instigation  of  her  husband.  For  it  is  based  chiefly 
on  the  medieval  idea  that  a  husband  has  the  same 
right  to  restrain  and  castigate  his  wife  as  he  has  a  frac- 
tious child.  The  equality  of  the  sexes  before  the  law 
should  hold  in  our  day  regardless  of  the  fact  of 
marriage. 

Yet  the  general  rule  of  law  and  equity  that  the 
husband  and  wife  can  not  be  witnesses  for  or  against 
each  other,  except  in  case  of  personal  assault,  is  a  sound 
one,  being  founded  on  the  natural  bias  arising  from 
marriage,  and  necessary  to  preserv^e  the  peace  and 
happiness  of  the  family.  I^ittle  can  be  said,  however, 
in  favor  of  the  law  that  all  a  wife's  personal  property 
acquired  before  marriage  belongs  to  the  husband. 
This  regulation  arose  when  the  wife  was  herself  re- 
garded as  the  property  of  her  husband,  and  in  an 
agricultural  stage  of  civilization  where  all  personal 
possessions  are  comparatively  of  little  value. 

Equally  unreasonable  is  the  law  that  a  husband 
should  be  held  responsible  for  his  wife's  debts  con- 
tracted before  marriage.  The  civilized  States  of  to-day 
should  abandon  the  common-law  principle  that  a 
woman  loses  her  individuality  by  marriage.  The 
property  owned  by  either  the  husband  or  wife  at  the 
time  of  marriage  should  remain  his  or  hers,  as  also 
any  that  either  may  acquire  by  gift,  bequest,  devise,  or 
descent  aftervi'ards,  together  with  the  annual  income 
from  the  same.     The  real  and  personal  property  of  the 


2  1 8  The  Sphere  of  the  State. 

wife  should  be  subject  to  her  absolute  disposal,  by  con- 
tract, conveyance,  or  will,  and  should  not  be  liable  for 
the  debts  of  her  husband.  Nor  should  the  husband  be 
liable  for  the  wife's  debts  contracted  after  marriage 
except  where  she  may  have  acted  as  his  agent  and  with 
the  proper  authority.  While  the  husband  should  be 
liable  for  the  wife's  support,  the  wife  should  also  be 
liable  for  his  support  if  he  has  no  separate  property 
and  they  have  no  community  property,  and  he  from 
infirmity  is  incompetent  to  support  himself. 

These  regulations,  so  eminently  in  harmony  with 
reason  and  justice,  are  already  in  force  in  most  of  our 
western  commonwealths,  and  if  they  should  be  adopted 
by  every  civilized  country  on  the  globe  much  would 
be  done  to  strengthen  the  power  of  the  Family  and 
advance  the  best  interests  of  the  people  in  their  organic 
relation  as  a  State. 

The  appearance  of  the  child  in  the  Family  at  once 
becomes  a  matter  of  solicitude  to  the  State.  The 
parents,  of  course,  are  the  natural  guardians  of  those 
they  call  into  being,  and  the  State  should  hold  them 
responsible  for  maintaining  and  educating  them  during 
the  season  of  infancy  and  youth,  and  for  making  rea- 
sonable provision  for  their  future  usefulness.  The 
Family  hearthstone  is  by  nature  the  child's  refuge 
from  evil  and  its  consolation  in  distress.  The  natural 
affection  of  the  parents  will  often  impel  them  to  do  in 
the  home  all  that  they  can  to  train  up  the  child  to  be- 
come a  worthy  citizen,  and  to  do  his  share  in  promo- 
ting the  common  good.  But  the  combined  wisdom  of 
the  State  should  come  in  to  determine  what  are  the 
essentials  of  good  citizenship,  and  should  alone  ulti- 
mately settle  the  question  as  to  how  they  are  to  be 
acquired. 


The  Family.  2 1 9 

The  State  should  also  determine  at  what  age  the 
child  may  act  for  himself,  and  until  that  age  arrives 
he  should  be  in  all  ordinary  affairs  under  the  control 
and  guidance  of  the  parent,  who  should  be  required  to 
supply  him  with  the  necessities  of  life,  educate  him 
in  the  common  requirements  of  the  State,  and  place 
him  in  such  environment,  both  physical  and  moral,  as 
will  help  him  to  lead  an  honorable  and  virtuous  life. 
If  these  conditions  are  conformed  with,  the  value  of 
the  services  and  labor  of  the  child,  should  go  to  the 
parent  as  a  compensation  in  part  for  the  fostering  care 
of  its  earlier  years  of  helplessness  and  want,  unless  the 
parent  in  some  way  consents  to  the  child's  receipt  and 
enjoyment  of  his  own  wages.  The  parent  should  not 
be  bound  by  the  contract  or  debt  of  his  child,  even  for 
articles  of  necessity,  unless  an  actual  authority  be 
proved  or  reasonably  implied.  For  otherwise  an  im- 
prudent child  might  ruin  the  estate  of  his  parents  even 
without  their  knowledge.  On  the  other  hand,  parents 
should  not  be  allowed  to  disinherit  a  child  entirely  at 
their  own  option.  It  is  a  relic  of  barbarism  that  a 
father  may,  at  his  death,  devise  all  his  estate  to 
strangers,  and  leave  his  children  upon  the  parish. 
"I  am  surprised,"  said  Lord  Alvanley,  "that  this 
should  be  the  law  of  any  country,  but  I  am  afraid  it  is 
the  law  of  England."  The  old  Athenian  and  Roman 
laws  were  far  more  in  accord  with  the  equities  of  the 
case  when  they  would  not  allow  a  parent  to  disinherit 
his  child  from  passion  or  prejudice,  but  only  for  sub- 
stantial reasons,  to  be  approved  of  in  a  court  of 
justice. 

Equally  abhorrent  to  reason  is  it  that  a  child  should 
at  its  own  will  disinherit  his  parents.  On  the  con- 
trary, it  is  the  plain  obligation  of  the  law  of  nature 


2  20  TJie  Sphere  of  the  State. 

that  the  children,  when  of  sufficient  ability,  should 
relieve  and  maintain  their  parents  if  through  sickness 
or  other  infirmity  they  are  clearly  unable  to  maintain 
themselves. 

Children  begotten  and  born  out  of  lawful  wedlock 
should  be  of  special  concern  to  the  State.  Everything  i 
should  be  done  by  the  State  that  can  be  done  to  fur- 
ther the  well-being  of  these  victims  of  illicit  passion. 
The  opposition  of  the  English  lyords  to  their  being 
made  legitimate  by  the  subsequent  marriage  of  their 
parents  was  most  inhuman  and  unjust.  Nearly  all  the 
nations  of  Europe  allow  it,  and  so  do  many  of  the  com- 
monwealths of  the  United  States.  It  should  not  only 
be  allowed,  but  be  established  as  a  rule  of  law  and 
equity  in  every  civilized  land.  No  child  should  be 
left  by  the  State,  if  it  can  possibly  be  avoided,  to  grow 
up  into  manhood  or  womanhood  without  the  care  and 
cultivation  of  a  home. 

Such  being  the  conditions  upon  which  the  Family 
should  be  formed,  and  the  regulations  that  should  be 
conformed  to  in  order  to  make  a  marriage  valid,  and 
such  being  the  consequences  to  the  respective  mem- 
bers of  the  Family  that  should  follow,  we  come  next 
to  consider  a  phase  of  our  subject  that  perhaps  in  our 
day  transcends  in  importance  all  others,  namely,  upon 
what  grounds  and  conditions  may  the  Family  right- 
eously be  dissolved.  It  is  a  vv^ell-established  fact  that 
where  marriage  is  most  easy  and  unrestricted  there 
divorces  most  abound.  In  heathen  lands  release  from 
the  conjugal  tie  was  often  granted  on  the  slightest  con- 
siderations. Among  the  Romans  marriage  was  looked 
upon  as  little  more  than  a  conventional  union  to  be 
continued  only  so  long  as  it  suited  the  mutual  con- 
venience of  the  parties.     But  what  Christianity  has 


The  Family.  221 

done  to  elevate  and  ennoble  the  Family  has  helped 
more  than  any  other  influence  to  make  the  dissolution 
difficult.  The  Emperor  Constantine  was  the  first  to 
prohibit  the  disruption  of  marriage  by  the  simple  con- 
sent of  the  parties.  It  was  not,  however,  till  after  the 
decree  of  the  Council  of  Trent  in  1562,  declaring  mar- 
riage indissoluble  for  any  cause  but  the  death  of  the 
parties,  that  a  uniform  law  on  the  subject  was  estab- 
lished. Most  countries  which  are  in  the  Roman  Cath- 
olic communion  still  continue  this  rule,  although  sepa- 
ration for  a  number  of  causes  they  do  not  hesitate  to 
sanction.  But  Protestant  nations  have  generally  aban- 
doned the  rule,  and  now  greatly  differ  among  them- 
selves in  their  laws  concerning  the  whole  subject. 

Excepting  the  commonwealth  of  South  Carolina, 
where  no  divorce  law  exists,  the  legal  causes  for  abso- 
lute divorce  vary  in  the  different  commonwealths  of 
the  United  States  from  one  to  fourteen.  Taking  the 
whole  of  the  nation  into  consideration,  the  total  number 
of  causes  is  forty-two.  In  Tennessee  a  refusal  on  the 
part  of  the  wife  "to  remove  with  her  husband  to  this 
state"  is  a  valid  cause  for  an  absolute  divorce,  and  in 
Florida  ' '  habitual  indulgence  in  violent  and  ungov- 
ernable temper." 

Within  the  last  twenty  years  most  of  the  countries 
of  Europe  have  greatly  increased  the  number  of  causes 
for  which  both  absolute  and  limited  divorces  may  be 
obtained.  France  from  18 16  to  1884  granted  no  abso- 
lute divorces  or  divorces  a  viyiciilo  matrimonii,  but  now 
even  previously  granted  limited  divorces  may  be  made 
absolute.  In  Austria  and  Ireland  jurisdiction  has  re- 
cently been  taken  from  the  ecclesiastical  courts  and 
given  to  the  civil  courts,  and  now  absolute  divorce  is 
allowed  to  all  their  subjects  except  to  members  of  the 


2  2  2  The  Sphere  of  the  State. 


Roman  Catholic  church.  The  laws  of  France,  Ger- 
many, and  Switzerland  now  permit  absolute  divorce  for 
a  number  of  causes  even  to  Roman  Catholics,  making 
no  distinction  on  account  of  religious  belief.  In  1875 
perpetual  separation  was  abolished  throughout  the 
German  Empire,  and  the  causes  that  had  formerly 
authorized  such  separation  from  bed  and  board  were 
made  causes  for  absolute  divorce. 

In  America  the  practice  in  regard  to  divorce  varies 
greatly  with  the  different  commonwealths.  * '  In  sev- 
eral of  them,"  says  Kent,  "no  divorce  is  granted  but 
by  special  act  of  the  legislature,  according  to  the  Eng- 
lish (former)  practice  ;  and  in  others  the  legislature 
itself  is  restricted  from  granting  them,  but  it  may  con- 
fer the  power  on  courts  of  justice.  So  strict  and  scru- 
pulous has  been  the  policy  of  South  Carolina,  that 
there  is  no  instance  in  that  state  (except  during  the 
negro  rule  of  1872-8)  since  the  Revolution  of  a  divorce 
of  any  kind,  either  by  sentence  of  a  court  of  justice  or 
by  act  of  the  legislature.  In  all  other  states  divorce 
a  vi7iculo  may  be  granted  by  courts  of  justice  for  adul- 
tery. In  New  York  the  jurisdiction  of  the  courts  as  to 
absolute  divorce  for  causes  subsequent  to  marriage  is 
confined  to  the  single  cause  of  adultery  ;  but  in  most 
of  the  other  states,  in  addition  to  adultery,  intolerable 
ill-usage,  or  wilful  desertion,  or  unheard-of  absence, 
or  habitual  drunkenness,  or  some  of  them,  will  author- 
ize a  decree  for  divorce  a  vinculo  under  different  modi- 
fications and  restrictions." 

The  result  of  this  legislation  in  the  countries  of 
Europe  and  America  is  well  illustrated  by  the  divorce 
statistics  for  1886,  the  latest  available.  In  that  year 
the  total  number  of  divorces  granted  in  Ireland  was  7, 
in  England  and  Wales   372,  in   Russia    1196,  in  the 


The  Family.  223 

German  Empire  6078,  in  France   621 1,  and   in   the 
United  States  25,535. 

' '  From  9937  divorces  granted  in  the  United  States 
in  1867,  the  total  has  reached  for  1886  25,535,  an  in- 
crease of  nearly  157  per  cent,  in  twenty  years.  The 
population  of  the  United  States  probably  increased 
about  60  per  cent,  for  the  same  period."  The  total 
number  of  divorces  granted  in  the  United  States  during 
this  period  was  328,716.  Of  these  139,382  were  couples 
with  children,  whose  lives  and  interests  were  most 
materially  affected  thereby.  Desertion  was  the  cause 
assigned  for  126,676  of  these  divorces,  and  adultery  for 
67,686. 

It  is  also  to  be  noted  that  where  divorces  are  the 
most  numerous  there  the  number  of  illegitimate  births 
most  abound.  According  to  Mulhall  the  percentage 
of  illegitimate  births  to  total  births  in  Greece  is  1.6,  in 
Ireland  2.3,  in  Russia  3.1.  In  Spain,  Portugal,  and 
Italy  the  average  is  6.1,  while  in  the  United  States, 
France,  Germany,  Scotland,  Sweden,  and  Denmark  it 
varies  from  7.0  to  11.2.  The  statistics  for  1887  do  not 
materially  differ  from  these  estimates. 

Certain  it  is  that  present  legislation  does  not  tend  to 
diminish  the  evils  of  divorce  and  illegitimate  births, 
but  to  increase  them.  Most  conservative  critics  esti- 
mate the  number  of  divorces  granted  in  the  United 
States  during  the  year  1893,  among  the  Protestant 
whites  alone,  at  upwards  of  35,000. 

The  remedy  for  existing  conditions  must  be  ade- 
quate for  the  disease,  and  a  long  and  bitter  experience 
seems  to  teach  us  that  the  only  adequate  remedy  for 
the  State  to  adopt  is  the  Roman  Catholic  doctrine  that 
death  alone  can  dissolve  a  marriage.  It  may  require  a 
groan  and  a  shudder  for  a  good  Protestant  after  so 


2  24  ^/^^  SpJicrc  of  the  State. 

many  centuries  of  antagonism  to  accept  such  a  position, 
but  it  is  a  great  deal  easier  for  him  to  reject  the  doc- 
trine than  it  is  to  confute  it,  either  on  the  grounds  of 
reason  or  Scripture. 

Edward  J.  Phelps,  our  ex-Minister  to  England,  in 
The  Forum  for  December.  1889,  after  carefully  review- 
ing the  present  status  of  divorce  in  the  United  States, 
says:  "I  venture  to  suggest,  as  the  result  of  a  long 
observation  of  judicial  proceedings  in  this  class  of 
cases,  that  the  remedy  will  be  found  in  the  entire  abo- 
lition of  the  sort  of  divorce  that  allows  parties,  or  either 
of  them,  to  marry  again.  ,  .  .  The  question  is  not 
whether  divorce  laws  shall  exist,  but  whether  the}- 
shall  permit  the  divorced  parties  to  remarry.  Here,  it 
is  believed,  will  be  found  the  main-spring  of  the  whole 
mischief.  If  that  right  were  taken  away,  nine  tenths, 
perhaps  ninety-nine  hundredths,  of  the  divorce  cases 
that  now  crowd  the  calendar  of  the  courts  and  pollute 
the  columns  of  the  newspapers  would  at  once  disap- 
pear. In  the  vast  majority  of  instances  the  desire  on 
the  part  of  one  or  the  other  or  both  to  remarry  is  the 
^foundation  of  the  whole  proceeding." 

It  is  the  opinion  of  competent  judges  that  even  with 
the  present  facilities  for  obtaining  divorce  only  a  few 
comparatively  are'just.  The  vast  majority  are  either 
collusive  or  fraudulent.  Nor  is  it  possible,  so  long  as 
divorce  is  granted  at  all,  to  prevent  it.  Divorce  is  not 
at  the  discretion  of  the  court.  It  is  the  legal  right  of 
the  parties  who  establish  the  facts  prescribed  by  the 
statute,  and  the  court  is  obliged  to  decide  the  case 
purely  on  the  prima-facie  evidence  so  long  as  no  de- 
fendant appears  to  rebut  it.  The  defendant  may  fail 
to  appear  because  he  wants  the  divorce  allowed  with  as 
little  investigation  as  possible,  or  because  he  knows 


Tlie  Family.  225 

nothing  about  the  trial.  In  the  latter  case,  of  course, 
the  divorce  is  illegal,  but  the  expense  and  litigation 
necessarj'  to  set  it  aside  are  generally  sufficient  to  pre- 
vent its  reversal.  ' '  There  is  not  a  married  pair  in  the 
United  States,"  .says  a  high  authority,  "capable  of 
locomotion  who  could  nofe,  if  both  should  concur,  ob- 
tain a  divorce  under  existing  laws  without  committing 
any  crime  that  could  be  legally  exposed  or  punished." 
The  only  real  objection  to  the  abolition  of  divorce  a 
vinculo  by  the  State  is  the  hardship  it  will  impose  in  a 
few  cases  upon  those  who  desire  to  remarry.  For  by 
liberal  legislation  regarding  separation  from  bed  and 
board  for  all  cases  of  actual  need  all  other  reasons  for 
granting  such  a  divorce  are  of  little  moment.  We 
must  bear  in  mind,  however,  that  laws  are  not  made 
for  special  cases  but  for  the  general  good.  If  they 
serve  this  end  we  have  no  right  to  call  their  general 
utility  in  question. 

If  the  State  should  once  adopt  the  policy  of  granting 
an  absolute  divorce  to  the  injured  party  for  adultery 
,even,  it  could  not  restrict  itself  to  that  alone,  at  least 
in  America,  but  must  in  practice,  if  not  in  form  of  law, 
go  still  further.  For  if  the  guilty  party  is  denied  re- 
marriage in  one  state,  all  he  has  to  do  is  to  go  to 
another  state  where  there  is  no  such  provision.  And  it 
is  an  almost  universal  rule  that  a  marriage  good  where 
it  is  celebrated  is  good  everywhere.  That  Congress, 
if  it  should  be  given  the  power,  would  enact  and  en- 
force a  general  law  making  such  a  marriage  impossible 
when  the  individual  states  do  not  sanction  it,  is  more 
than  we  have  any  right  to  expect. 

Furthermore,  regarding  marriage  purely  as  a  civil 
contract,  as  we  do  in  this  chapter,  and  waiving  all  the 
considerations  that  might  be  presented  from  the  higher 


2  26  The  Sphere  of  the  State. 

and  nobler  standpoint  of  religion,  on  what  ground  of 
right  or  expediency  can  the  granting  of  absolute  di- 
vorce be  limited  to  the  one  act  of  adultery  ?  Are  there 
not  other  and  equally  heinous  crimes  that  as  effectually 
nullify  the  marriage  contract  ?  In  many  States,  as  in 
England,  adultery  is  not  even  an  indictable  oflFence, 
and  where  indictable  is  rarely  punished  with  severity. 
At  all  events,  is  not  the  continuance  of  the  nuptial 
union  made  as  truly  intolerable  by  unmitigated  cruelty  ? 
How  can  the  State  justly  dissolve  the  conjugal  tie  for 
any  cause  if  not  for  murderous  assault  ? 

It  is  argued  by  some  that  if  divorced  people  are  com- 
pelled to  remain  single  they  will  often  become  im- 
moral, and  in  that  way  do  far  greater  injury  to  the 
body-politic  than  if  allowed  to  remarry.  But  Professor 
Phelps,  speaking  of  the  condition  of  affairs  in  America, 
does  not  hesitate  to  affirm  that  ' '  all  experience  is  to 
the  contrary.  Certainly,  among  women  the  exceptions 
to  strict  morality  will  not  be  found  so  numerous  in  sin- 
gle as  in  married  life.  .  .  .  It  is  notorious  that  the 
desire  to  be  rid  of  a  relation  that  has  ceased  to  be 
pleasant,  leads  many  a  man,  and  not  a  few  women,  to 
conduct  either  intended  to  bring  about  that  result,  or 
recklessly  entered  upon  in  the  feeling  that  if  it  takes 
place  it  will  not  be  unwelcome." 

Chancellor  Kent  was  of  the  opinion  that  in  many  of 
the  cases  upon  which  he  was  obliged  to  act  judicially 
adultery  was  committed  by  the  husband  for  the  very 
reason  of  getting  the  divorce.  We  have  already 
pointed  out  that  illegitimate  births  are  far  more  nu- 
merous in  countries  where  divorce  is  easy  than  where 
it  is  difficult  or  not  to  be  had  at  all.  Those  who 
have  paid  great  attention  to  the  subject  assert  that  in 
all  lands  immorality  increases  as  divorces  multiply ; 


The  Family.  227 

that  instead  of  checking  one  another,  the  historical  fact 
is  that  they  act  as  a  mutual  stimulus. 

The  permanency  and  purity  of  the  Family  are  vital  to 
the  welfare  of  the  State.  How  to  attain  the  one  and 
preserve  the  other  is  one  of  the  greatest  questions  of 
our  modern  social  life.  Gladstone  goes  so  far  as  to  say 
that  ' '  the  greatest  and  deepest  of  all  human  controver- 
sies is  the  marriage  controversy.  It  appears  to  be 
surging  up  upon  all  sides  around  us."  We  believe 
that  the  considerations  already  presented  make  it  clear 
that  this  controversy  will  never  be  permanently  settled 
except  on  the  basis  of  the  inviolability  of  marriage. 

lyCt  ample  provision  be  made  by  the  State  for  limited 
divorce  for  a  great  variety  of  causes.  If  one  of  the 
parties  becomes  idiotic,  or  insane,  or  criminal,  every 
incentive  should  be  held  out  to  induce  a  separation. 
And  so,  too,  if  one  of  the  parties  becomes  an  habitual 
drunkard.  Everything  should  be  done  to  develop  a 
strong  sentiment  in  the  community  that  to  continue 
the  union  under  such  circumstances  is  a  base  prostitu- 
tion of  one's  powers  and  an  outrage  upon  the  genera- 
tion to  follow.  Separation  a  mensa  et  thoro  should  be 
granted  for  cruel  and  inhuman  treatment  of  any  sort ; 
for  neglect  or  refusal  to  support  in  a  suitable  manner  ; 
for  desertion  for  a  considerable  period ;  for  indignities 
to  person  ;  for  reasonable  apprehension  of  bodily  harm  ; 
in  short,  for  anything  and  everything  that  effectually 
destroys  the  prime  objects  of  marriage.  I^et  liberal  pro- 
vision be  made  for  the  comfort  and  support  of  the  in- 
nocent party.  But  never  make  the  dissolution  absolute. 
Eliminate  collusive  and  fraudulent  divorces  by  this 
method  and  you  will  reduce  the  number  of  divorces  to 
a  minimum.  Take  away  from  all  the  opportunity  to 
remarry  and  you   have  plucked  up  the  evil  by  the 


2  28  The  Sphere  of  the  State. 

roots.  Experience  has  shown  this  to  be  true  in  the 
past,  and  there  is  every  reason  to  expect  that  it  will  be 
true  in  the  future.  The  State  errs  to  its  own  hurt  in 
so  far  as  it  departs  in  its  laws  of  marriage  from  the 
formula  made  venerable  by  time  and  confirmed  by 
universal  experience,  "for  better  for  worse,  for  richer 
for  poorer,  in  sickness  and  in  health,  till  death  them 
doth  part." 


CHAPTER   XIII. 

THE   STATE   AND   THE   CHURCH. 

In  a  book  written  nearly  two  thousand  years  ago  by 
a  heathen  of  Boeotia,  in  ancient  Greece,  we  read  these 
words  :  ' '  Go  over  the  world  and  you  may  find  cities 
without  walls,  without  theatres,  without  money,  with- 
out art ;  but  a  city  without  a  temple,  or  an  altar,  or 
some  order  of  worship,  no  man  ever  saw." 

This  statement  is  as  true  in  the  last  quarter  of  the 
nineteenth  century  of  the  Christian  era  as  when  it  was 
first  uttered,  and  no  one  at  all  familiar  with  the  results  of 
modern  investigation  and  research  can  reasonably  call  it 
in  question.  Even  the  cannibals  of  Southern  Africa,  the 
most  degraded,  perhaps,  of  all  the  races  of  men,  carry 
(their  fetishes  with  them  in  all  their  undertakings,  and 
hide  them  in  their  waist-cloth  whenever  they  are  about 
to  do  anything  of  which  they  feel  ashamed.  ' '  There 
is  no  need,"  writes  Dr.  I^ivingstone  in  his  Journals, 
' '  for  beginning  to  tell  the  most  degraded  of  these  people 
of  the  existence  of  God  or  of  a  future  state — the  facts 
being  universally  admitted." 

All  observation  and  experience  justify  the  assertion 
that  every  man  is  born  a  worshipper.  He  is  so  made 
that  in  the  very  act  of  coming  to  a  knowledge  of 
his  own  existence  he  intuitively  knows  himself  as 
related  to  a  higher  Power.     He  instinctively  believes 

229 


230  The  Sphere  of  the  State. 

that  he  is  indebted  for  his  existence  to  this  Power, 
and  that  he  owes  to  Him  the  worship  and  service  of  his 
life.  It  is  difficult  to  overestimate  the  influence  of  this 
religious  element  in  human  nature  upon  the  course  of 
history.  It  is  hardly  too  much  to  say  that  it  is  now, 
and  always  has  been,  the  most  important  single  factor  in 
determining  the  progress  of  mankind.  "  As  an  histori- 
cal fact, ' '  says  another,  ' '  nations  and  governments  and 
religions  have  everywhere  a  connection,  not  only  most 
intimate,  but  which  has  thus  far  shown  itself  indis- 
soluble. If  we  look  more  closely  into  this  historical 
fact,  we  find  that  the  controlling  element  in  their  con- 
nection has  ever  been  the  religious  one.  Nations  and 
governments  have  not  formed  their  religion,  but  their 
religion  has  formed  them."  In  other  words,  the  more 
fully  men  realize  their  relation  to  God  as  their  common 
Father,  the  more  clearly  will  they  recognize  their  rights 
and  duties  to  one  another  as  brethren  and  thus  discover 
the  only  secure  foundation  upon  which  to  ground  the 
State. 

In  one  sense  of  the  term  every  human  being  is  as 
truly  a  member  of  the  Church  as  of  the  Family  or  State. 
For  every  person  is  by  nature  related  to  God,  as  well 
as  to  his  parents  and  his  fellows.  In  this  sense  the 
Church  is  one  and  indivisible  and  includes  every  human 
being.  Like  the  Family  and  the  State  it  cannot  be 
created  to-day  and  destroyed  to-morrow,  and  like  them 
it  is  of  divine  origin.  For  man  is  so  made  by  his 
Creator  that  whether  he  will  or  no  he  must  be  a  subject 
of  the  divine  government  as  well  as  of  the  human. 

In  another  sense  of  the  term  the  Church  is  manifold. 
There  may  rightly  exist  in  the  world  as  many  indi- 
vidual Churches  as  the  good  of  the  universal  Church 
requires.     A  true  Church  is  found  in  human  history 


The  State  and  the  Church. 


2^1 


whenever  a  community  of  human  beings  join  together 
to  worship  and  serve  their  Maker.  Each  Church 
approaches  perfection  as  a  Church  just  in  proportion 
as  the  idea  of  a  common  divine  sonship  is  realized  in 
its  members  both  in  themselves  and  in  all  their  mutual 
relations.  In  this  sense  of  the  term  no  Church  is  per- 
manent. Old  Churches  should  be  dissolved  and  new 
ones  formed  whenever  the  religious  needs  of  man 
require  it. 

No  civil  government  can  justly  ignore  the  Church, 
any  more  than  it  can  justly  fail  to  acknowledge  its 
relation  to  the  Family.  To  attempt  to  treat  the  Church 
and  the  State  as  utterly  distinct  is  as  unreasonable  as 
to  succeed  in  such  an  undertaking  is  impossible.  For 
"  no  civil  government  can  stand  in  the  neglect  of  all 
religion,  and  no  community  can  maintain  its  freedom 
without  a  government  in  some  way  acknowledging  a 
religion."  The  chief  question  before  every  State  is  not 
whether  it  has  any  relation  to  the  Church  within  its 
borders,  but  how  to  determine  what  that  relation  ought 
to  be. 

Four  different  answers  have  been  given  to  this  ques- 
tion in  the  course  of  history  and  still  have  their  respective 
advocates.  I.  Some  hold  that  the  State  should  be 
subordinate  to  the  Church  and  should  act  simply  as 
the  agent  of  the  Church,  getting  all  the  authority  and 
power  it  possesses  from  the  Church  and  not  from  itself. 
' '  All  nations  without  exception  have  commenced  with 
this  regime.  There  are  none  which  have  not  been 
governed  at  first  by  a  religious  power."  As  an  histori- 
cal fact,  religion  has  been  the  only  power  that  could 
check  the  wanderings  of  nomadic  tribes  and  so  fix  them 
to  the  soil  as  to  make  them  accessible  to  the  demands 
of  a  civilized  life.     That  all   primitive  governments 


232  The  SpJicre  of  the  State. 


were  theocratic  is  now  established  beyond  all  reasonable 
dispute.  The  seventh  book  of  the  Code  of  Manu  is 
devoted  entirely  to  the  enumeration  of  the  duties  of 
kings.  In  India  and  the  Orient  from  the  earliest  times 
religion  has  been  dominant.  In  the  greater  part  of 
Europe  during  the  middle  ages  the  Church  was  supreme 
over  all  classes  and  conditions  and  kept  a  strong  hand 
upon  civil  government. 

In  the  infancy  of  a  nation  the  dominance  of  the 
Church  over  civil  government  is  undoubtedly  a  great 
blessing.  Barbarous  and  undisciplined  tribes  cannot 
otherwise  be  taught  a  reverence  for  law  and  thus  made 
capable  of  being  brought  under  the  yoke  of  a  civilized 
life. 

In  the  chaos  that  followed  the  wreck  of  the  Roman 
empire,  the  Catholic  church  was  almost  the  sole  remain- 
ing bond  of  social  unity.  The  bishops  were  the  only 
persons  that  commanded  the  respect  of  the  barbaric 
hordes  that  overran  the  south  of  Europe. 

But  what  the  Church  did  in  the  degenerate  times  of 
♦the  middle  ages,  and  did  wisely  and  well,  it  should 
not  of  necessity  do  or  desire  to  do  in  other  times  and 
under  other  conditions.  No  one  has  more  clearly  or 
accurately  expressed  the  true  position  on  this  point 
than  the  great  Catholic  writer  Dr.  Von  Schulte.  In 
treating  of  the  legitimate  objects  of  the  Church  in  our 
day,  he  says:  "During  the  middle  ages,  we  see  an 
infinity  of  objects  drawn  into  its  domain,  with  which 
at  first  glance,  it  would  seem  to  have  nothing  to 
do  .  .  .  But  it  cannot  be  ignored  that  its  direct 
action,  so  far  as  its  end  and  mission  are  concerned, 
has  not  so  broad  an  aim  now,  and  that  consequently 
no  place  in  things  non-essential  belongs  to  it,  that  none 
such  is  necessary  or  can  appear  necessary  to  it,  and 


The  State  and  the  Church. 


that  it  has  no  right  to  such  a  place.  Rather  can  the 
immediate  and  ever-legitimate  aim  of  the  Church  be 
this  and  this  onlj^  :  man  in  his  moral  and  religious  re- 
lations. If  the  Church  here  attains  its  object,  harmony 
will  of  itself  follow. ' ' 

2.  Another  view  of  the  relation  of  the  State  to  the 
Church  is  that  the  State  is  absolute  master  over  the 
religious  beliefs  and  modes  of  worship  of  its  subjects 
as  truly  as  over  their  secular  affairs.  When  the 
Religious  Peace  was  concluded  at  the  Diet  of  Augs- 
burg, in  1555  the  assembled  princes  adopted  the  dire- 
ful maxim  :  cujus  est  regio,  ejus  religio,  the  religion  of 
the  ruler  is  the  religion  of  the  land. 

Neither  Melanchthon  nor  Luther  were  blind  to  the 
evil  consequences  of  this  system.  ' '  If  the  courts  wish, ' ' 
wrote  Luther  to  his  friend  Cresser,  ' '  to  govern  the 
churches  in  their  own  interests,  God  will  withdraw  his 
benediction  from  them,  and  things  will  become  worse 
than  before.  Satan  still  is  Satan.  Under  the  popes 
he  made  the  Church  meddle  in  politics  ;  in  our  time 
he  wishes  to  make  politics  meddle  with  the  Church." 

The  prerogative  of  the  prince  to  impose  his  own  re- 
ligion upon  his  subjects  makes  him  by  right  the  head 
of  the  Church  and  puts  the  administration  of  ecclesi- 
astical ajffairs  under  the  general  administration  of  the 
country.  This  continues  even  to  our  day  to  be  the 
law  of  Protestant  Germany.  But  it  is  rarely  heeded. 
The  German  princes  have  always  been,  as  a  rule,  far 
more  tolerant  than  their  laws  and  have  allowed  public 
opinion,  "which  is  nowhere  so  independent  in  reli 
gious  matters  as  in  German}^'*  to  guide  their  conduct. 
Russia  is  the  only  country  in  which  this  theory  has 
been  put  into  actual  practice.  When  the  patriarchs  of 
Moscow  urged  on  by  the  Russian  bishops,  broke  with 


2  34  T^he  Sphere  of  the  State. 

the  patriarch  of  Constantinople,  they  sought  for  many 
generations  to  make  themselves  supreme  in  the 
Church ;  but  Peter  the  Great  frustrated  their  designs 
in  1 79 1  by  declaring  that  he  himself  was  the  head  of 
the  Church  as  well  as  the  State,  and  he  thoroughly  reor- 
ganized the  entire  religious  system  of  Russia  on  that 
basis.  The  result  is  Russia  herself.  It  is  a  debatable 
question  whether  she  has  a  just  claim  to  a  place  among 
civilized  nations.  So  long  as  a  man  remains  a  man 
his  morality  and  piety  must  stand  quite  outside  the 
sphere  of  government,  divine  or  human.  True  reli- 
gious belief  and  worship  must  ever  be  the  act  of  a  free 
being,  and  it  is  not  only  absurd,  but  impossible,  for  a 
government  to  coerce  its  subjects  to  the  adoption  of  any 
religious  system  whatever  as  a  matter  of  thought  and 
life. 

3.  A  third  theory  concerning  the  connection  of  the 
Church  with  the  State  is  that  they  are  both  sovereign 
powers  and  that  the  relation  between  them  is  to  be 
determined  by  a  series  of  concordats.  Concordats 
have  repeatedly  been  made  in  China  and  Japan  be- 
tween the  spiritual  powers  and  the  emperors  or  ty- 
coons. In  our  day  in  Christian  lands  they  are  almost 
always  compacts  made  between  temporal  sovereigns  and 
the  popes.  They  have  been  aptly  described  as  treaties 
of  peace  between  the  civil  and  religious  powers.  Their 
main  object  is  to  put  an  end  to  disputes  that  are 
equally  dangerous  to  both  parties,  and  with  very  rare 
exceptions  they  are  the  results  of  a  long  struggle. 

The  most  famous  of  the  earlier  of  these  compacts 
was  the  concordat  of  Worms  in  11 22.  Henry  V.  had 
been  to  Rome  with  an  army  and  compelled  the  pope  to 
crown  him  emperor  and  concede  to  him  the  right  of 
investiture.     When  he  returned  to  Germany  the  pope 


The  State  and  the  Church.  235 

revoked  the  concession  and  excommunicated  him. 
The  long  controversy  that  followed  was  for  the  time 
settled  by  this  concordat  in  which  it  was  agreed  that 
the  emperor  should  first  invest  with  the  sceptre,  and 
then  consecration  should  take  place  by  the  Church 
with  the  ring  and  the  staff. 

Another  good  illustration  of  the  compromise  charac- 
ter of  concordats  is  the  famous  compact  that  Napoleon 
forced  upon  the  representative  of  Pius  VII.  in  1801. 
By  this  agreement  the  clergy  became  subject  to  the 
civil  power,  like  laymen,  in  all  temporal  matters  ;  and 
though  the  pope  had  very  large  powers  secured  to  him 
in  matters  of  discipline,  the  appointment  to  all  the 
bishoprics  was  retained  by  the  government  and  all 
the  appointees  were  obliged  to  swear  allegiance  to  the 
republic. 

Concordats  by  their  very  nature  can  never  be  final, 
for  they  are  based  on  concessions  that  are  never  en- 
tirely satisfactory  to  either  of  the  contracting  parties. 
In  all  countries  where  they  exist  it  has  been  necessary 
to  modify  them  unceasingly,  or  replace  them  by  en- 
tirely new  ones.  France,  during  the  present  century, 
has  had  three  different  concordats,  and  many  times 
that  number  in  recent  years  have  been  made  and  abol- 
ished in  Germany  and  Austria.  The  struggle  goes  on 
under  the  regime  of  concordats  in  nearly  the  same 
form  as  before  their  establishment. 

No  State,  if  it  can  possibly  avoid  it,  should  ever 
make  contracts  of  this  sort  with  any  outside  power. 
If  compelled  to  do  so  it  should  submit  to  the  imposi- 
tion only  under  protest,  and  as  a  temporary  device  for 
warding  off  far  greater  ills  that  would  be  sure  to  come 
to  the  body  politic  if  it  persisted  in  the  endeavor  to 
maintain  its  right  of  sovereign  power.     France,  for  ex- 


236  The  sphere  of  the  State. 

ample,  may  be  obliged,  in  the  present  condition  of 
affairs  in  that  country,  scrupulously  to  observe  the 
existing  concordat  in  order  to  continue  her  present 
.form  of  government.  But  the  time  ought  speedily  to 
come  when  she  should  throw  off  all  allegiance  to  any 
outside  sovereign  power,  and  provide  in  some  more 
efficient  and  consistent  manner  for  the  nation's  reli- 
gious needs. 

4.  The  fourth  proposed  theory  is  that  the  Church  and 
the  State  are  so  utterly  distinct,  their  spheres  of  action 
are  so  entirely  different,  that  their  absolute  separation 
is  the  only  solution  of  the  problem  before  us  that  can 
be  permanent,  and  can  carry  us  back  to  the  ultimate 
ground.  The  simplicity  of  this  solution  must  be  evi- 
dent to  the  most  thoughtless  observer.  But  its  sim- 
plicity is  its  only  redeeming  feature.  All  history  is 
against  it,  and  reason  is  against  it.  No  nation  has 
ever  yet  been  able  to  get  along  without  religion,  and 
religion  has  never  yet  flourished  without  houses  of 
worship  and  a  properly  supported  religious  service. 

The  State  can  no  more  cut  itself  off  from  the  Church 
than  it  can  from  the  Family.  It  stands  in  the  same 
relation  to  the  one  as  to  the  other.  A  recent  writer  in 
the  N^orth  American  Review  advocates  the  absolute 
separation  of  the  State  from  the  Family.  He  claims 
that  the  government  should  not  in  any  way  attempt  to 
regulate  marriage  and  divorce,  but  should  leave  the 
matter  of  the  formation  and  continuance  of  the  family 
wholly  to  the  pleasure  of  the  parties.  Few  seriously 
minded  thinkers  will,  however,  agree  with  him  in  this 
opinion.  But  it  is  no  more  absurd  a  doctrine  than  the 
absolute  separation  of  Church  and  State.  Fortunately 
there  is  no  danger  of  the  doctrine  ever  being  put  into 
actual  practice.     For  its  realization  is  an  impossibility. 


The  State  and  the  Church.  237 

So  long  as  man  remains  upon  the  earth  these  three 
divinely  established  institutions  will  remain  in  such 
intimate  and  vital  relations  to  one  another  that  any 
injury  to  one  will  be  an  injury  to  all,  and  any  good  to 
one  will  be  a  benefit  to  all.  It  is  only  in  a  state  of  in- 
sanity, as  at  the  time  of  the  French  revolution,  that 
any  people  have  ever  taken  up  arms  against  religion, 
and  sought  as  a  body  politic  to  cut  themselves  off  from 
its  benign  and  civilizing  influence. 

5.  The  true  relation  of  the  State  to  the  Church  is 
that  of  mutual  helpfulness.  They  should  not  act  as 
two  antagonistic  powers,  or  two  mutually  exclusive 
powers,  but  as  two  divinely  commissioned  institutions, 
both  having  to  do  with  man,  but  the  one  with  man  in 
his  relation  to  his  fellows,  and  the  other  with  man  in 
his  relation  to  his  Maker.  So  far  as  its  earthly  form 
of  organization  is  concerned,  the  Church  should  be 
subject  to  the  State,  as  the  only  sovereign  temporal 
power ;  but  so  far  as  its  religious  belief  and  worship 
are  concerned,  it  should  be  its  own  sovereign  master. 

No  State  can  justly  ignore  or  belittle  the  religious 
convictions  of  its  members.  On  the  contrar}^  it  should 
do  what  it  can  to  bring  those  convictions  into  harmony 
with  its  own  ideas  as  to  what  the  public  good  requires. 
It  should  foster  and  encourage  the  practice  of  that  re- 
ligion whose  teachings  concerning  the  nature  of  man 
and  his  relations  to  his  fellows  most  fully  accord  with 
its  own  conception  of  those  relations.  Neither  the 
Mohammedan  nor  the  Buddhistic  religions  are  founded 
on  ideas  that  harmonize  with  the  true  conception  of 
the  State,  and  therefore  the  State  should  not  encourage 
the  existence  of  their  sway  over  its  subjects.  The  only 
religion  whose  teachings  accord  with  the  conception 
of  the  State  as  an  organic  brotherhood  is  the  Christian 


238  The  sphere  of  the  State. 

religion.  Wholly  on  that  ground  is  the  State  justified 
in  furnishing,  in  some  way,  the  necessary  means  for 
obtaining  instruction  in  the  principles  of  this  religion, 
and  full  opportunity  for  worshipping  in  accordance 
with  its  dictates  to  all  who  may  desire. 

Every  modern  State  ought  to  be  a  Christian  State. 
By  this  we  do  not  mean  that  every  State  ought  to  be 
ruled  by  a  hierarchy  according  to  the  teachings  of  the 
Bible,  or  according  to  religious  tradition.  For  this 
would  be  wholly  antagonistic  to  the  idea  of  Christian- 
ity, and  at  war  with  the  historical  development  both 
of  the  Church  and  the  State.  What  we  mean  by  the 
statement  is  simply  that  every  State  should  be  con- 
scious that  the  Christian  religion  is  the  religion  of  its 
people,  and  it  should  live  up  to,  and  act  upon,  this 
consciousness.  It  should  recognize  the  fact  that  Chris- 
tianity is  a  fundamental  condition  of  its  own  devel- 
opment, and  "  is  not  only  the  basis,  but  the  living 
element  of  our  civilization."  We  can  not  too  strongly 
insist  upon  the  importance  to  the  welfare  of  the  State 
and  the  efficient  administration  of  government,  of  keep- 
ing alive  among  the  people  a  strong  faith  in  a  personal 
God,  and  his  righteous  government  of  the  universe. 
For  without  this  faith  the  spiritual  bond  that  binds  all 
men  together  as  brethren  would  be  broken,  the  very 
foundation  of  government  v.'ould  crumble  into  pieces, 
all  unity  in  the  order  of  the  world  would  be  lost,  and 
the  inevitable  result  would  be  anarchy  and  chaos. 

No  writer  has  more  accurately  or  more  truthfully 
described  the  relation  of  Christianity  to  the  develop- 
ment of  the  modern  State  than  the  great  Bluntschli, 
who  summarizes  its  beneficent  effects  in  substance  as 
follows:  I.  It  has  awakened  among  the  people  a  high 
sense  of  human  dignity  and  honor.     Since  the  time  it 


The  State  and  the  CJiurch.  2T,g 

first  taught  men  to  regard  themselves  as  children  of  a 
common  Father,  the  value  of  human  life  has  been  held 
in  far  higher  esteem  than  ever  before  in  human  his- 
tory. 2.  By  the  doctrine  of  the  fatherhood  of  God  it 
has  brought  men  to  a  consciousness  of  their  equality 
and  fraternity  in  relation  to  one  another.  Acting  as  a 
liberating  force  upon  all,  even  on  the  lowest  class,  the 
slaves,  it  gave  a  new  foundation  to  the  liberty  of  all, 
and  has  transformed  the  face  of  Europe.  3.  It  has  put 
a  legitimate  restraint  upon  the  power  of  monarchs  by 
reminding  them  of  their  accountability  to  the  Supreme 
Ruler,  and  by  demanding  of  them  that  they  should  re- 
spect their  subjects  as  their  brethren  in  Christ.  4.  It 
has  revealed  the  affinity  of  all  the  races  of  the  earth, 
and  by  opposing  the  narrow  spirit  of  sectionalism  with 
its  doctrine  of  the  unity  of  the  human  species,  it  be- 
came the  source  of  a  higher  and  nobler  conception  of 
the  moral  principles  that  should  regulate  the  inter- 
course of  nations,  and  thus  laid  the  foundations  for 
the  eventual  civilization  of  the  world. 

"  In  proportion  as  nations  come  to  understand  human 
nature,"  Bluntschli  continues,  "they  will  respect  the 
religion  which  has  guided  them  in  their  intellectual 
advance,  and  infinitely  promoted  their  civilization.  On 
this  account  the  State,  although  now  conscious  of  it- 
self and  grown  independent,  will,  in  the  future,  take 
into  consideration  the  moral  demands  Christianity 
may  make,  and,  so  far  as  its  laws  and  power  permit, 
try  to  grant  them.  The  religion  of  mankind  and  the 
politics  of  mankind — each  adhering  to  its  own  princi- 
ples— will  continue  in  close  and  friendly  reciprocal  re- 
lations, and  thus  united  they  will  best  promote  the 
welfare  of  the  human  race." 

In  the  light  of  these  considerations  it  is  not  difficult 


240  The  Sphere  of  the  State. 

to  see  that  the  question  of  an  ' '  established  religion  ' ' 
is  merely  a  question  of  expediency  to  be  settled  by 
each  generation  as  the  need  of  the  people  may  require. 
The  position  taken  by  one  State  on  this  matter  in  one 
set  of  circumstances  is  not,  of  necessity,  a  standard  for 
another  State  in  a  different  set  of  circumstances.  For 
whether  the  religious  wants  of  a  community  can  be 
better  satisfied  by  the  direct  action  of  the  government, 
or  by  the  system  of  private  management  and  voluntary 
support,  is  not  a  question  that  alone  by  itself  admits 
of  a  positive  answer.  Sometimes  the  former  method 
should  be  followed,  sometimes  the  latter.  The  cus- 
toms of  the  people  in  similar  matters,  their  past  his- 
tory, and  all  the  present  attendant  circumstances, 
should  be  taken  into  consideration  before  coming  to  a 
final  decision.  If,  for  example,  the  property  of  the 
country  has  become  concentrated  in  the  hands  of  a 
few,  and  the  mass  of  the  people  have  not  the  means  to 
build  churches  and  support  pastors,  the  government 
should  raise  the  revenue  needed  by  a  direct  tax.  Means 
for  the  maintenance  of  religious  instruction  and  places 
for  worship  should  in  some  way  be  provided  by  the 
people.  If  it  can  not  be  done,  or  will  not  be  done,  by 
voluntary  contributions,  the  government  should  not 
hesitate  to  act  in  the  matter,  any  more  than  in  provid- 
ing instruction  and  discipline  in  anything  else  that  is 
of  importance  to  the  welfare  of  the  State.  Nor  is  there 
any  reason,  in  the  nature  of  the  case,  why  religious  in- 
struction and  opportunity  to  worship  should  not  con- 
tinuously be  furnished  by  the  government,  if  it  is  the 
general  desire  of  the  people  to  have  the  matter  attended 
to  in  that  manner. 

The  possible  disadvantages  of  such  a  system  are  ob- 
vious :  it  might  tend  to  minimize  the  importance  of 


The  State  and  the  Chu7^ch.  241 

religion  as  an  individual  matter,  and  to  check  the 
independent  growth  and  development  of  religious  sen- 
timent. It  might  result  in  putting  a  premium  on 
deception  as  to  one's  religious  convictions  for  fear  of 
incurring  the  displeasure  of  the  government.  It  might 
lead  some  to  array  themselves  against  the  government 
for  compelling  them  to  help  support  an  institution  in 
which  they  had  no  personal  interest. 

But  it  also  has  its  possible  advantages.  Being 
obliged,  from  the  nature  of  the  case,  to  recognize  and 
foster  religion,  it  might,  by  selecting  a  particular  form, 
give  greater  definiteness  to  its  support  of  religion  than 
would  otherwise  be  possible.  It  might  often  use  the 
clergy  directly,  if  necessary,  for  the  furtherance  of  its 
own  purposes.  It  might  secure  by  this  method  a  far 
higher  degree  of  general  religious  culture. 

Every  State  in  deciding  on  its  course  of  action  in 
this  matter,  as  in  ever>^  other,  should  take  into  consid- 
eration all  the  data  of  the  case,  and  do  whatever  in  its 
own  judgment,  in  the  given  conditions,  best  conserves 
the  good  of  all. 

Of  course,  no  State  is  justified  in  taking  the  position 
that  any  one  way  of  fostering  religion  is  absolutely  the 
best  way,  or  that  any  one  form  of  church  government 
is  absolutely  the  best  form,  even  though  it  should 
claim  that  the  Christian  religion  is  actually  the  only 
religion  in  history  that  teaches  ideas  that  are  con- 
sonant with  the  true  conception  of  the  State.  For 
evidently  there  may  be  in  a  Christian  State  many  dif- 
ferent ways  of  looking  at  the  Christian  religion,  and  as 
many  forms  of  church  government  as  there  are  forms 
of  civil  government.  Because  a  given  form  was  bene- 
ficial to  the  religious  progress  of  mankind  in  one  age 
and  country  under  one  set  of  circumstances,  is  no  suffi- 

l6 


242  The  sphere  of  the  State. 

cient  reason  that  it  will  continue  to  be  so  when  the 
conditions  are  wholly  different.  Nor  should  a  form 
that  failed  to  work  well  in  an  early  period  of  history 
be  wholly  discarded  for  that  reason  in  a  later.  The 
people  of  each  generation  have  the  same  right  to 
change  the  form  of  their  church  government  as  the 
form  of  their  civil  government.  And  the  State  ought 
to  allow  and  sanction  the  change  whenever  the  ends 
for  which  the  Church  exists  among  men  will  be  best 
promoted  by  so  doing. 

The  framers  of  our  national  constitution  undoubtedly 
voiced  the  will  of  the  people  of  the  United  States  when 
they  inserted  in  the  first  amendment  to  that  document 
the  clause :  ' '  Congress  shall  make  no  laws  respecting 
an  establishment  of  religion,  or  prohibiting  the  free 
exercise  thereof."  The  ground  of  the  opposition  to 
this  amendment  at  the  time  of  its  adoption  was  not  at 
all  the  policy  of  the  government  regarding  an  estab- 
lishment of  religion,  but  the  need  of  any  such  amend- 
ment, as  no  one  thought  of  advocating  any  other 
policy.  Livermore  of  New  Hampshire  unhesitatingly 
declared,  concerning  all  the  amendments,  that  they 
were  "of  no  more  value  than  a  pinch  of  snuff,  since 
they  were  to  secure  rights  never  in  danger."  This 
clause  in  our  national  constitution,  however,  does  not 
prevent  any  of  the  separate  states  from  passing  any 
laws  they  please  ' '  respecting  an  establishment  of  reli- 
gion," or  treating  the  religious  beliefs  of  their  subjects 
in  any  way  they  may  desire.  The  framers  of  this 
amendment  were  not  indifferent  to  religion  themselves, 
nor  did  they  wish  the  United  States  to  be  so  in  the 
future.  "  Probably  at  the  time  of  the  adoption  of  the 
constitution,  and  of  the  amendment  to  it,  now  under 
consideration,"  says  Judge  Story  in  his  Exposition  of 


The  State  and  the  Church.  243 

the  Constitution,  "the  general,  if  not  the  universal, 
sentiment  in  America  was  that  Christianity  ought  to 
receive  encouragement  from  the  state,  so  far  as  was 
not  incompatible  with  the  private  right  of  conscience 
and  the  freedom  of  religious  worship.  An  attempt  to 
level  all  religions,  and  to  make  it  a  matter  of  state  policy 
to  hold  all  in  utter  indifference,  would  have  created 
universal  disapprobation,  if  not  universal  indignation." 
It  was  clearly  not  the  purpose  of  the  makers  of  the 
constitution  to  countenance  the  introduction  of  Mo- 
hammedanism, or  Buddhism,  or  even  infidelity,  "but 
to  exclude  all  rivalry  among  Christian  sects,  and  pre- 
vent any  national  ecclesiastical  establishment  which 
should  give  to  a  hierarchy  the  exclusive  patronage  of 
the  national  government."  Every  American  colony, 
with  the  possible  exception  of  Rhode  Island,  from  its 
foundation  down  to  the  time  of  the  forming  of  the  con- 
stitution, had  openly  supported  some  form  of  the 
Christian  religion.  And  this  amendment  was  adopted 
for  the  purpose  of  leaving  the  subject  of  religion  ex- 
clusively to  the  separate  commonwealths.  At  the  first 
test  case  before  the  Supreme  Court  ' '  the  decision  was 
the  constitution  contained  no  clause  guaranteeing  re- 
ligious liberty  against  the  several  states  which  might 
make  such  regulations  on  the  subject  as  they  saw  fit." 
Nor  does  the  constitution  contain  any  clause  prohibit- 
ing the  national  government  from  deciding  what  forms 
of  religious  belief  it  will  tolerate,  and  what  forms  it 
will  not.  "  In  deciding  the  Mormon  cases,"  says  Jus- 
tice Miller,  ' '  the  Supreme  Court  held  that  the  pretence 
of  a  religious  belief  in  polygamy  could  not  deprive 
Congress  of  the  power  to  prohibit  it,  as  well  as  all 
other  offences  against  the  enlightened  sentiment  of 
mankind." 


244  ^^  Sphere  of  the  State. 

Many  of  the  separate  states  have  adopted  constitu- 
tions limiting  the  action  of  their  respective  govern- 
ments even  more  stringently  than  Congress  is  limited 
by  the  clause  already  quoted.  Art.  I.,  sec.  3  of  the 
constitution  of  New  York  begins  as  follows:  "The 
free  exercise  and  enjoyment  of  religious  profession  and  ^ 
worship  without  discrimination  or  preference,  shall  for- 
ever be  allowed  in  this  state  to  all  mankind,  and  no 
person  shall  be  incompetent  to  be  a  witness  on  account 
of  his  opinions  on  matters  of  religious  belief."  The 
constitution  of  Wisconsin  is  probably  more  stringent 
on  this  point  than  that  of  any  other  state  in  the  Union. 
Besides  the  clause  against  "sectarian  instruction"  in 
the  public  school,  the  constitution  provides  :  "  (i)  The 
right  of  every  man  to  worship  Almighty  God  accord- 
ing to  the  dictates  of  his  own  conscience  shall  not  be 
abridged ;  (2)  Nor  shall  any  man  be  compelled  to  at- 
tend, erect,  or  support  any  place  of  worship,  or  to 
maintain  any  ministry  against  his  consent.  (3)  Nor 
shall  any  control  or  interference  with  the  right  of  con- 
science be  permitted,  or  any  preference  given  by  law 
to  any  religious  establishments  or  modes  of  worship. 
(4)  Nor  shall  any  money  be  drawn  from  the  treasury 
for  the  benefit  of  religious  societies,  or  religious  or 
theological  seminaries." 

These  provisions  are  undoubtedly  in  the  main  wise 
and  beneficial  in  a  country  made  up  of  so  many  differ- 
ent races  and  sects  as  ours.  But,  notwithstanding  the 
fact  that  the  word  ' '  forever ' '  occurs  so  frequently  in 
them,  they  are  all  subject  to  amendment  or  repeal 
whenever  the  people,  in  their  organic  capacity  as  a 
State,  desire  to  make  it.  None  of  them,  whether  state 
or  national,  imply  an  absolute  separation  of  the  State 
from  religion,  or  prohibit  the  giving  of  religious  in- 


The  State  and  the  Church.  245 

struction  in  our  public  schools,  or  elsewhere,  if  the 
good  of  the  people  requires  it.  Nor  dp  they  in  any 
degree  militate  against  the  fact  that  the  United  States 
is  a  Christian  nation  ;  and,  while  tolerating  all  reli- 
gions that  do  not  tend  to  subvert  the  public  good, 
especially  encourages  and  fosters  the  religion  of  Christ. 

No  one,  it  seems  to  me,  has  ever  expressed  more 
clearly  the  position  that  should  be  taken  by  every 
modern  State  on  this  subject  than  Judge  Story  in  the 
work  already  referred  to,  in  which  he  says :  ' '  The 
right  of  a  society  or  government  to  interfere  in  matters 
of  religion  will  hardly  be  contested  by  any  persons  who 
believe  that  piety,  religion,  and  morality  are  intimately 
connected  with  the  well-being  of  the  state,  and  indis- 
pensable to  the  administration  of  civil  justice.  The 
promulgation  of  the  great  doctrines  of  religion  :  the 
being,  and  attributes,  and  providence  of  one  Almighty 
God  ;  the  responsibility  to  him  for  all  our  actions, 
founded  upon  moral  freedom  and  accountability ;  a 
future  state  of  rewards  and  punishments  ;  the  cultiva- 
tion of  all  the  personal,  social,  and  benevolent  virtues  ; 
— these  never  can  be  a  matter  of  indifference  in  any 
well-ordered  community.  It  is,  indeed,  dif&cult  to 
conceive  how  any  civilized  society  can  well  exist  with- 
out them.  And,  at  all  events,  it  is  impossible  for  those 
who  believe  in  the  truth  of  Christianity  as  a  divine 
revelation,  to  doubt  that  it  is  the  especial  duty  of  gov- 
ernment to  foster  and  encourage  it  among  all  the  citi- 
zens and  subjects.  This  is  a  point  wholly  distinct 
from  that  of  the  right  of  private  judgment  in  matters 
of  religion,  and  of  the  freedom  of  public  worship  ac- 
cording to  the  dictates  of  one's  conscience." 

If  at  any  time  in  the  history  of  a  State  voluntary 
associations  do  not  furnish  the  people  with  proper  re- 


246  The  Sphere  of  the  State. 

ligioiis  instruction  and  proper  opportunities  for  wor- 
ship, the  State  should  not  hit  left  to  suffer.  The  gov- 
ernment, if  necessary,  should  establish  and  maintain  a 
system  that  does  adequately  provide  for  the  public 
need.  The  State  should  always  regard  religion  as  a 
means,  not  as  an  end.  It  should  never  try  to  compel 
its  subjects  to  adopt  any  system  of  religious  belief,  or 
conform  to  any  mode  of  worship.  But  it  should  fur- 
nish to  &\Qxy  citizen  full  opportunity  to  acquaint  him- 
self with  the  essentials  of  religion,  and  grant  him, 
also,  every  reasonable  facility  for  giving  expression  to 
his  religious  belief  in  the  forms  of  worship  he  may 
most  desire. 


CHAPTER  XIV. 

the;  state  in  its  relation  to  other  states. 

We  have  little  or  no  evidence  that  the  ancients  had 
any  conception  of  the  brotherhood  of  nations.  The 
idea  that  the  States  of  the  earth  together  constitute  a 
great  commonwealth  and  ought  to  act  towards  one 
another  as  members  of  one  common  family  had  no 
perceptible  influence  over  their  actions  or  thoughts. 
The  Greeks  in  their  palmiest  days  knew  nothing  of  a 
humanity  that  exceeded  their  own  territorial  limits.  In 
regard  to  all  other  nations  eternal  war  on  the  barbarians 
was  the  watchword  of  their  conduct.  Aristotle  went 
so  far  as  to  assert  that  foreigners  were  intended  by 
nature  to  be  the  slaves  of  the  Greeks.  It  was  the 
custom  of  the  Romans  to  annihilate  the  nations  that 
would  not  become  subject  to  them,  and  even  when  they 
subjugated  Greece  they  put  to  death  or  sold  into  slavery 
hundreds  of  thousands  of  their  captives.  Although 
the  ancient  Germans  often  held  hospitality  sacred,  they 
looked  upon  foreigners  as  having  no  rights  and  did  not 
hesitate  to  dispossess  the  conquered  of  their  lands,  and 
even  of  their  lives,  if  they  so  desired.  The  Jews  of  early 
times  regarded  themselves  as  exclusively  the  chosen 
people  and  made  it  for  centuries  one  of  the  chief 
objects  of  their  existence  to  extirpate  the  communities 
with  which  they  came  in  contact. 

247 


248  TJie  Sphere  of  the  State. 

The  idea  that  all  humanity  constitutes  but  one 
family  is  chiefly  the  offspring  of  Christianity.  Jesus, 
by  claiming  every  member  of  the  human  race  as  a 
brother,  first  laid  the  foundation  for  a  community  of 
States.  Historically  it  was  among  Christian  nations 
f.iat  International  lyaw  first  began  to  be  developed, 
and  it  is  through  their  influence  that  it  is  to-day  so 
rapidly  extending  its  sway  over  every  portion  of  the 
earth.  In  the  sixteenth  century  "the  Bible  and  the 
Institutes  of  Justinian  became  the  common  property  of 
all  the  more  civilized  nations  of  Europe,  and  brought 
about  the  harmony  of  moral  and  legal  ideas  necessary 
to  the  international  agreement  and  understanding  of 
states."  The  Protestant  Reformation  first  rendered 
possible  the  realization  of  the  idea  of  self-dependent 
States,  without  which  there  can  be  no  just  basis  of  in- 
ternational intercourse.  For  the  first  requisite  of  such 
intercourse  is  the  full  and  complete  recognition  of  the 
fact  that  the  jurisdiction  of  a  nation  over  the  persons 
and  commodities  within  its  own  territory  is  exclusive 
and  absolute.  This  necessarily  involves  the  right  of 
ever>'  State  to  maintain  any  form  of  government  in  any 
way  it  chooses,  and  freely  to  change  it  whenever  it 
may  so  desire.  It  also  implies  the  right  to  entrust  its 
sovereign  powers  to  several  departments  or  concentrate 
them  all  in  the  hands  of  a  single  individual  ;  in  short, 
to  manage  its  own  internal  affairs  absolutely  unre- 
strained by  any  outside  power. 

In  the  very  nature  of  the  case  a  large  portion  of  the 
surface  of  the  earth  is  beyond  the  jurisdiction  of  any 
State.  The  high  seas,  either  the  whole  or  any  part  of 
them,  can  not  be  included  within  the  territory  of  a 
State,  and  therefore  by  right  they  are  open  to  all.  The 
privilege  of  sailing  over  them  or  fishing  in  them  belongs 


The  State  and  Other  States.  249 

equally  to  all.  The  Behring  Sea  controversy  ought 
not  to  be  settled  on  any  other  basis  than  the  clear 
acknowledgment  of  this  right,  whatever  may  have 
been  the  recognized  or  unrecognized  claims  regarding 
the  matter  in  the  past.  Otherwise  a  great  injury  will 
be  done  to  the  true  conception  of  the  sovereignty  of 
States,  and  to  the  establishment  among  the  nations  of 
the  earth  of  sound  principles  of  international  right. 

One  of  the  prime  duties  of  a  State  in  relation  to  other 
States  is  the  duty  of  self-defence.  "  The  right  of  self- 
preservation,"  says  Phillimore,  "  is  the  first  law  of 
nations,  as  it  is  of  individuals.  A  society  which  is  not 
in  a  condition  to  repel  aggression  from  without  is 
wanting  in  its  principal  duty  to  the  members  of  which 
it  is  composed,  and  to  the  chief  end  of  its  institutions. 
All  means  which  do  not  affect  the  independence  of 
other  nations  are  lawful  to  this  end."  In  the  exercise 
of  this  right  every  State  ought  to  protect  its  coasts, 
harbors,  and  land  frontiers  in  every  way  that  is  deemed 
necessary  to  secure  them  from  hostile  attack.  For  the 
,same  reason  it  ought  to  defend  the  person  and  property 
of  its  citizens  from  insult  and  aggression  of  every  sort. 
The  right  it  claims  for  itself  it  should  freely  allow  to 
every  other  State.  While  resenting  the  invasion  of  its 
own  sovereign  control  of  the  territory  and  people  within 
its  jurisdiction,  it  is  bound  to  respect  the  rights  of 
other  States.  It  cannot  justly  allow  its  own  subjects, 
or  the  subjects  of  any  other  nation  temporarily  within 
its  borders,  to  invade  them  or  use  its  territory  as  a 
basis  of  hostile  assault.  The  weakness  of  its  govern- 
ment or  the  insufficiency  of  its  laws  is  no  excuse  for 
failure  to  discharge  this  obligation. 

By  claiming  complete  immunity  from  interference  in 
its  own  internal  affairs  it  takes  upon  itself  the  corre- 


250  The  Sphere  of  the  State. 

spending  duty  of  non-interference  in  the  internal  affairs 
of  others.  Only  emergencies  of  the  gravest  character, 
such  as  its  own  self-preservation,  the  breaking  of  an 
important  treaty  stipulation,  or  some  gross  outrage 
upon  humanity  can  justify  any  exception  to  this  rule. 
Interference  in  behalf  of  the  balance  of  power  can  have 
no  just  basis  unless  self-defence  requires  it  or  unless 
unnecessary  wars  on  the  part  of  selfish  and  unscrupu- 
lous States  can  be  prevented  by  so  doing.  While  it 
may  not  be  true,  as  some  aflSmi,  that  the  number  of 
wars  fought  since  the  first  application  of  this  doctrine 
by  the  nations  of  Europe  would  have  been  far  less 
numerous  if  the  doctrine  had  never  been  asserted,  still 
it  must  be  admitted  that  it  has  often  been  invoked  to  per- 
petuate great  abuses  of  power  and  prevent  the  achieve- 
ment of  desirable  constitutional  reforms.  It  is  a  gross 
violation  of  reason  and  right  to  hold  that  any  nation  can 
justly  use  force  to  retard  the  civilization  or  lessen  the 
prosperity  of  its  inoffensive  neighbors,  or  check  their 
increase  in  wealth  and  population  by  developing  their 
natural  resources  and  cultivating  the  physical  and  in- 
tellectual capabilities  of  their  subjects  to  the  highest 
degree  of  efficiency  and  power. 

The  principle  of  ex-territoriality — that  a  State  may 
exercise  jurisdiction  over  its  subjects  beyond  its  strict 
territorial  limits — needs  in  no  way  to  collide  with  this 
duty  of  non-interference  in  the  internal  affairs  of  other 
States.  Every  State  should  be  responsible  for  the  con- 
duct of  the  officers  and  crews  of  its  ships  of  war  wher- 
ever they  may  be,  and  for  its  merchant  vessels  on  the 
high  seas.  It  should  punish  the  crimes  committed  by 
its  subjects  in  territory  occupied  by  savages  or  not 
claimed  by  any  civilized  power,  and  also  the  crime  of 
piracy  by  whomsoever  committed  and  on  whatsoever 


The  State  and  Other  States,  251 

seas.  It  would  be  impossible  for  the  ambassadors  and 
public  ministers  of  a  nation  to  represent  successfully 
their  own  government,  or  effectively  to  interfere  in  be- 
half of  their  fellow-subjects,  if  they  were  not  regarded 
as  responsible  to  the  home  government  alone,  and  en- 
tirely free  from  the  jurisdiction  of  the  country  to  which 
they  are  accredited.  Yet  this  very  immunity  is  granted 
by  the  governing  power  of  the  nation  to  which  they  are 
deputed,  and  could  not  exist  for  a  moment  without 
that  consent.  It  is,  therefore,  no  interference  with  a 
State's  sovereign  powers.  The  principle  is  universally 
conceded  by  all  Christian  States,  and  has  been  gener- 
ally recognized  as  valid  ever  since  the  first  establish- 
ment in  the  fourteenth  century  of  permanent  legations 
in  Burope. 

Writers  on  International  Law  often  agitate  the  ques- 
tion as  to  whether  a  State  has  a  right  to  force  another 
State  to  intercourse  with  itself  against  its  desire. 
That  is,  should  a  nation  allow  another  to  adopt  a  rule 
of  strict  non- intercourse  ?  We  are  greatly  helped  in 
answering  this  question  by  making  a  clear  distinction 
between  political  intercourse  and  commercial  inter- 
course. A  State  can  reasonably  be  required,  for  exam- 
ple, to  recognize  the  existence  of  another  State  by 
receiving  its  ambassador  when  one  is  sent  to  it,  by 
treating  humanely  the  subjects  of  other  nations  when 
they  are  met  with  on  the  high  seas,  or  when  some 
calamity,  such  as  the  distress  or  stranding  of  a  vessel, 
throws  them  within  its  borders.  The  fundamental 
importance  of  political  intercourse  between  States  is 
well  expressed  by  Woolsey,  when  he  says  that  ' '  there 
can  be  no  law  of  nations  without  it,  no  civilization,  no 
world,  but  only  separate  atoms."  The  discussion  of 
this  point  is,  however,  of  little  practical  moment,  as 


252  TJic  Sphere  of  the  State. 

"no  state  now  assumes,  or  ever  has  assumed,  such  an 
attitude  of  complete  isolation." 

When  we  come  to  consider  commercial  intercourse 
we  have  to  do  with  quite  another  matter.  No  articles 
of  international  trade  are  by  nature  so  absolutely  indis- 
pensable to  the  existence  of  any  State  as  to  justify  a 
resort  to  force  in  order  to  obtain  them.  If  a  State  may 
justly  adopt  a  protective  tariff  of  any  sort,  why  may  it 
not  go  to  the  extent  of  shutting  out  all  foreign  trade 
from  its  borders  ?  It  is  hard  to  see  why  every  nation 
should  not  be  left  to  decide  for  itself  upon  the  extent 
of  its  commercial  intercourse  with  others.  Why  should 
the  laws  of  nations  interfere  on  this  point  with  the  will 
of  individual  States,  any  more  than  municipal  law 
should  interfere  with  the  will  of  individuals? 

At  one  time  it  was  much  discussed  as  to  whether 
China,  Japan,  and  other  countries,  which  had  for  a 
long  time  refused  all  commercial  intercourse  with  other 
nations,  should  not  be  compelled  to  open  their  ports  to 
foreigners,  and  engage  in  trade  with  the  rest  of  the 
world. "  "  But,  as  a  question  of  international  jurispru- 
dence," says  Halleck,  "it  scarcely  merits  considera- 
tion. No  doubt  on  this  point  could  arise  in  the  mind 
of  any  person,  except  those  who  contend  that  the  rules 
of  International  Law  adopted  by  Christian  nations  are 
wholly  inapplicable  to  the  countries  of  Asia.  But  this 
opinion,  although  at  one  time  supported  by  writers  of 
unquestioned  ability,  is  now  almost  universally  rejected 
by  publicists." 

It  is  a  singular  fact  that  no  term  in  International 
Law  is  more  difficult  of  definition  than  the  term  native- 
bom  citizen.  For  it  is  impossible  to  deduce  any  rule 
on  the  subject  that  is  common  to  all  nations.  Some, 
as  Austria  and  Russia,  determine  the  nationality  of  a 


The  State  and  Other  States.  253 

child  by  the  nationalit}'  of  its  parents  ;  others,  as  Eng- 
land and  the  United  States,  by  the  place  of  its  birth. 
But  granting  that  every  person  by  birth  owes  alle- 
giance to  some  State,  the  question  arises,  Can  he  ever 
change  that  allegiance,  or  must  it  remain  one  and  the 
same  through  life  ?  The  policy  of  ancient  Rome  did 
not  allow  the  possibility  of  such  a  change.  The  title 
civis  Romanus  was  indelible.  A  citizen  might  be  de- 
prived of  his  life,  but  he  could  not  be  deprived  of  his 
citizenship.  The  feudal  system  was  equally  jealous  of 
native  rights,  and  Great  Britain,  even  as  late  as  181 2, 
insisted  upon  the  maxim,  "once  an  Englishman,  al- 
ways an  Englishman,"  and  treated  as  traitors  native- 
born  Englishmen  who  had  become  naturalized  in  the 
United  States,  and  had  taken  up  arms  against  the 
mother-country. 

Until  the  treaty  of  1870  with  the  United  States  the 
English  judges  uniformly  decided  that  no  subject  could 
relie\'e  himself  of  the  duty  of  allegiance  except  by  the 
consent  of  his  native  country.  American  jurists  have 
also  substantially  acquiesced  in  this  decision,  but  the 
political  departments  of  our  government  have  always 
,  maintained  that  the  right  of  expatriation  was  an  indi- 
vidual right  existing  at  all  times,  and  capable  of  being 
exercised  at  will.  In  1868  Congress  passed  a  law  de- 
claring that  "  the  right  of  expatriation  is  a  natural  and 
inherent  right  of  all  people,  indispensable  to  the  enjoy- 
ment of  the  rights  of  life,  liberty,  and  the  pursuit  of 
happiness."  This  act  has  not  yet  received  judicial 
interpretation.  If  taken  to  mean  that  a  person  can 
justly  expatriate  himself  without  the  consent  of  his 
government  after  he  has  arrived  at  the  period  of  mili- 
tary service  without  rendering  that  service,  or  can  by 
this  act  justly  absolve  himself  from  all  responsibility 


254  "^^^^  Spha'c  of  the  State. 


for  his  debts  and  other  similar  obligations  to  his  coun- 
try and  fellows,  it  ought  not  to  be  sanctioned.  It  is 
reasonable  that  a  country  that  has  supported  and  edu- 
cated a  person  until  he  has  become  of  productive  age, 
should  have  some  claim  upon  his  services  if  the  coun- 
try needs  them,  and  should  have  some  power  in  deter- 
mining the  conditions  upon  which  he  may  abandon 
the  old  allegiance  and  take  up  a  new  one. 

Every  State  should,  however,  take  to  itself  the 
exclusive  right  of  prescribing  the  conditions  upon 
which  it  will  admit  aliens  to  citizenship.  It  may  justly 
refuse  under  some  circumstances  to  admit  them  on  any 
conditions.  It  may  justly  make  the  period  of  residence 
prerequisite  to  naturalization  long  in  one  stage  of  its 
development  and  short  in  another.  As  a  matter  of 
fact  the  period  has  greatly  varied  in  different  countries. 
France  required  ten  years  previous  to  1867.  Since 
then  only  three.  A  person  who  renders  the  nation  a 
great  service  may  be  naturalized  in  one  year.  In  the 
United  States  we  now  require  five  years,  although  at 
one  time  the  requisite  period  was  fourteen.  In  some 
respects  our  laws  concerning  naturalization  are  the  most 
illiberal  of  those  of  any  civilized  nation  on  the  earth. 
Previous  to  1870  only  a  "free  white  person"  could 
acquire  citizenship  in  the  United  States.  If  he  were 
of  any  other  color,  no  matter  what  his  intellectual 
and  moral  attainments  might  have  been,  he  was  ex- 
cluded from  the  privilege.  Even  now  all  are  debarred 
save  free  whites  and  negroes  who  were  born  in  Africa 
or  are  of  African  descent,  the  sentiments  of  the  Decla- 
ration of  Independence  and  our  recent  constitutional 
amendments  to  the  contrary  notwithstanding. 

When  once  naturalized  an  individual  should  be  in- 
vested with  all  the  rights  of  a  native-born  citizen, 


The  State  mid  Other  States.  255 

and  should  be  entitled  to  the  same  extra-territorial  pro- 
tection. But  if  he  returns  to  his  native  country  he 
should  there  be  held  liable  to  all  his  unfulfilled  obliga- 
tions, and  treaties  to  that  effect  should  be  made  with 
every  friendly  State.  He  may  also  renounce  his  new 
allegiance  and  return  to  the  old  one  or  form  a  new  tie 
elsewhere.  If  he  returns  to  his  native  State  and 
settles  there  with  the  intention  of  remaining,  he 
should  be  regarded  as  having  renounced  his  acquired 
allegiance  and  assumed  the  citizenship  of  his  nativity. 
The  two-3^ear  limit  of  sojourn  contained  in  many  trea- 
ties on  this  subject  is  most  fittingly  regarded,  if  no 
other  declaration  is  previously  made  by  the  individual, 
as  declaring  this  intent.  Under  such  circumstances 
the  country  of  his  adoption  should  no  longer  protect 
him  in  the  enjoyment  of  the  privileges  it  demands  for 
its  own  citizens,  but  should  leave  him  entirely  at  the 
disposal  of  the  country  of  his  birth. 

When  the  state  department  of  the  United  States 
instructed  its  consuls  and  ministers  at  the  Court  of  St. 
James  not  to  interfere  in  behalf  of  those  Irish-Amer- 
icans in  the  Fenian  trouble  in  1867-8  who  relied  on 
their  naturalization,  which  they  had  practically  aban- 
doned, to  protect  them  in  their  treasonable  operations 
against  the  English  government,  it  did  no  violence  to 
the  thoroughly  American  principle  that  a  naturalized 
citizen  should  be  treated  on  the  same  footing  as  a 
native-born.  It  simply  recognized  the  fact  that  those 
who  violate  the  law  of  the  land  in  any  civilized  coun- 
try, whether  subject  or  alien,  must  sufier  the  conse- 
quences, and  no  appeal  therefrom  can  be  tolerated. 

There  is  a  considerable  difference  of  opinion  among 
jurists  as  to  whether  a  State  is  bound  to  deliver  up  to 
another  fugitive  criminals, — at  least  those  who  are 


256  The  Sphere  of  the  State. 


charged  with  crimes  of  excessive  atrocity, — on  the 
mere  request  of  the  demanding  State,  or  whether  it 
should  surrender  them  only  when  by  a  treaty  on  the 
subject  it  has  definitely  stipulated  so  to  do.  Chancellor 
Kent  distinctly  affirms  that  it  is  ' '  the  law  and  usages 
of  Nations,  resting  on  the  plainest  principles  of  justice 
and  public  utility,  to  deliver  up  offenders  charged 
with  felony  and  other  high  crimes,  and  fleeing  from 
the  country  into  a  foreign  and  friendly  jurisdiction." 
Secretary  Seward  in  1864  did  not  hesitate  to  surrender 
Arguelles  to  the  Spanish  government,  although  no 
treaty  at  that  time  existed  between  the  two  nations, 
and  he  defended  his  action  in  an  able  paper  on  the 
subject  before  the  Judiciary  Committee  of  the  House. 
He  maintained  that  there  was  "a  national  obligation 
and  authority  for  the  extradition  of  criminals,"  and 
that  the  exercise  of  this  authority  in  the  case  of  the 
United  States  rested  with  the  President,  who  should  be 
guided  in  wielding  it  by  the  "  heinous  guilt  against  the 
law  of  universal  morality  and  the  safety  of  human 
>  society,  and  the  gravity  of  the  consequences  which 
will  attend  the  exercise  of  the  power  in  question  or  its 
refusal."  Notwithstanding  the  fact  that  the  House 
refused  to  condemn  Seward  for  this  act,  Secretary  Fre- 
linghuysen  in  his  report  for  February,  1884,  un- 
doubtedly states  more  correctly'  the  rule  of  the  United 
States  when  he  speaks  of  "  the  long  and  uniform  course 
of  decisions  which  hold  that  the  President,  in  the 
absence  of  legislation  and  treaty,  has  not  the  power  to 
enforce  that  doctrine,"  namely,  the  surrender  of  fugi- 
tive criminals.  Dr.  Wharton  suras  up  the  law  of  the 
United  States  on  this  point  as  follows  :  "  As  a  general 
rule  there  can  be  no  extradition  to  a  foreign  State  with- 
out treaty. ' ' 


The  State -and  Other  States.  257 

This  is  carrying  the  doctrine  of  non-responsibility 
for  crimes  committed  abroad  much  too  far.  Chancellor 
Kent's  position  may  have  been  too  advanced  for  his 
generation,  but  the  rapid  increase  in  commerce  that 
has  taken  place  in  recent  years,  and  the  ease  with 
which  people  now  pass  from  nation  to  nation  in  almost 
every  part  of  the  world,  make  the  adoption  of  his  views 
in  our  time  most  reasonable  and  just.  Criminals 
should  be  made  to  feel  that  so  far  as  they  are  con- 
cerned the  reign  of  law  knows  no  bounds.  It  is  wholly 
opposed  to  the  well-being  of  society  that  murderers, 
robbers,  counterfeiters,  embezzlers  and  such-like  from 
any  part  of  the  world  can  in  our  day  find  a  secure 
asylum  on  orur  shores,  or  go  to  any  other  civilized 
country  and  escape  their  just  deserts. 

It  has  been  a  settled  principle  in  the  law  of  the 
United  States  from  the  beginning  of  its  existence  as  an 
independent  power  that  there  could  be  no  extradition 
for  political  oifences.  Jefferson,  when  Secretary  of 
State,  gave  as  the  reason  for  this  position  that  "  most 
codes  extend  their  definitions  of  treason  to  acts  not 
really  against  one's  government.  They  do  not  distin- 
guish between  acts  against  the  government  and  acts 
against  the  oppression  of  the  government.  The  latter 
are  virtues,  yet  have  furnished  more  victims  to  the  exe- 
cutioner than  the  former. "  It  is  now  more  than  a  hun- 
dred years  since  Jefferson  penned  these  words.  What- 
ever may  have  been  true  of  them  then,  it  is  certainly 
most  unreasonable  to  hold  that  they  fittingly  describe 
the  condition  of  affairs  to-day  in  any  civilized  countr>'. 
It  is  high  time  that  this  hard  and  fast  rule  should  give 
way  to  one  more  nearly  in  accord  with  the  present  de- 
mands of  justice  and  right.  Our  knowledge  of  events 
and  conditions  in  other  civilized  lands  is  now  so  exten- 


25S  The  Sphere  of  the  State. 

sive  and  minute  that  we  have  no  excuse  for  not  attempt- 
ing to  discriminate  between  those  political  oflfences  that 
are  "  against  the  government  and  those  that  are  against 
the  oppressions  of  the  government."  No  civilized  land 
should  furnish  a  place  of  refuge  for  political  assassins. 
What  would  have  been  more  abhorent  to  the  sense  of 
justice  of  every  true  American  than  that  the  murderers 
of  Lincoln  and  Garfield  should  have  escaped  all  molesta- 
tion by  fleeing  to  Canada  or  Mexico  ?  They  undoubt- 
edly would  have  claimed  a  purely  political  motive 
for  their  acts.  How  could  we  justly  demand  them  on 
our  principle  of  no  extradition  for  a  political  offence  ? 
The  anarchists  and  nihilists  of  Europe  are,  many  of 
them  at  least,  as  ready  to  devote  their  own  lives  as  they 
are  the  lives  of  their  rulers  to  the  cause  of  political 
reform.  If  after  many  attempts  at  executing  their 
nefarious  schemes  they  should  escape  to  our  shores, 
are  we  justified  in  refusing  to  surrender  them  because 
their  aim  is  a  political  one  ? 

As  regards  interstate  extradition  in  the  United  States 
the  Federal  Constitution  reads  as  follows  :  "  A  person 
charged  in  any  state  with  treason,  felony,  or  other  crime, 
who  shall  flee  from  justice,  and  be  found  in  another 
state,  shall,  on  demand  of  the  executive  authority  of 
the  state  from  which  he  fled,  be  delivered  up,  to  be  re- 
moved to  the  state  having  jurisdiction  of  the  crime." 
This  is  an  excellent  provision,  and  the  government 
should  make  it  possible  to  enforce  it.  For  although 
the  Supreme  Court  of  the  United  States  has  decided 
that  where  demand  is  made  in  due  form,  it  is  the  duty 
of  the  executive  on  whom  the  demand  is  made  to  re- 
spond to  it,  yet  if  he  refuses,  no  power  has  been  con- 
ferred on  the  Federal  Courts  to  compel  obedience. 
Governors  of  states  have  repeatedly  refused  to  comply 


The  State  and  Other  States.  259 

with  such  demands.  Whenever  from  personal,  politi- 
cal, or  any  other  motives  they  do  not  desire  the  extra- 
dition of  a  criminal,  they  do  not  hesitate  to  prevent  it, 
and  no  means  have  yet  been  devised  to  deprive  them 
of  the  power. 

Because  of  the  feudal  doctrine  of  indelible  allegiance, 
that  an  individual  always  remained  a  subject  of  the 
state  in  which  he  was  born,  the  lot  of  an  alien  in 
early  times  was  a  peculiarly  hard  one.  For  all  the  per- 
sonal and  property  rights  he  was  permitted  by  his 
sovereign  to  enjoy  at  home  he  lost  whenever  he  went 
outside  his  sovereign's  territorial  limits.  "So  soon," 
says  Davis,  "  as  he  passed  the  frontiers,  and  entered  the 
territory  of  another  State,  he  was  regarded  as  being 
without  rights.  Such  privileges  of  residence  and  occu- 
pation as  he  enjoyed  were  held  under  sufferance  only, 
and  could  be  withdrawn  or  cancelled  at  the  pleasure  of 
the  sovereign  in  whose  territory  he  was  resident."  In 
case  of  his  death  in  a  foreign  country  his  property,  both 
real  and  personal,  was  forfeited  to  the  sovereign.  At 
a  later  date  it  was  heavily  taxed  when  withdrawn  from 
the  territory.  It  was  not  until  the  beginning  of  the 
present  century  that  these  harsh  provisions  were  set 
aside.  Even  now  in  many  countries  foreigners  are  not 
permitted  to  hold  land  on  the  same  conditions  as  sub- 
jects. Austria,  Bavaria,  Prussia,  Sweden,  and  other 
countries  do  not  accord  the  right  unless  on  condition 
of  reciprocity.  It  is  only  since  1870  that  an  alien  could 
purchase  a  freehold  in  England.  Some  of  the  common- 
wealths of  the  United  States  require  residence  and  an 
oath  of  allegiance,  and  others  a  declaration  of  an  inten- 
tion of  becoming  a  naturalized  citizen. 

It  is  evident  that  there  could  be  no  intercourse  be- 
tween nations  if  aliens  could  not  demand  for  them- 


2  6o  The  Sphere  of  the  State. 

selves  and  their  property  the  protection  of  the  State 
where  they  reside.  For  a  State  not  to  grant  them  this 
protection  when  they  have  been  allowed  freelj^  to  enter 
its  territory  is  most  inhnman  and  unjust.  As  another 
expresses  it,  "  the  obligation  to  treat  foreigners  with  hu- 
manity, and  to  protect  them  when  once  admitted  into  a 
country,  depends  not  on  their  belonging  to  a  certain 
political  community  which  has  a  function  to  defend  its 
members,  nor  wholly  on  treaty,  but  on  the  essential 
rights  of  human  nature. ' '  They  should  be  held  to  obe- 
dience to  the  laws  of  the  land,  and  should  be  punished 
for  disobeying  them.  Nor  should  ignorance  of  the  law 
be  allowed  as  an  excuse.  For  they  are  permitted  to 
enter  the  country  solely  on  the  ground  that  they  are 
both  able  and  willing  to  inform  themselves  as  to  its 
statuatory  demands. 

On  the  other  hand,  they  may  justly  be  deprived  of 
many  of  the  privileges  of  the  native-born  subject. 
They  may,  for  example,  be  obliged  to  pay  a  residence 
tax  ;  they  may,  if  necessary,  be  restricted  in  their  power 
of  holding  land.  If  they  are  subjected  to  special  police 
regulations,  there  may  be  no  just  ground  of  complaint, 
and  they  ought  not  under  any  circumstances  to  have 
all  the  political  privileges  of  a  citizen.  It  is  a  great 
defect  in  the  political  system  of  the  United  States  that 
foreigners  of  only  a  few  months'  sojourn  in  the  coun- 
try, even  those  who  never  intend  to  become  citizens 
of  the  United  States,  can  in  some  states  vote  for  all  the 
officers  of  the  state  and  national  governments,  includ- 
ing President  and  Vice-President,  on  an  equal  footing 
with  the  citizens  that  are  native-born.  Unless  some 
way  is  speedily  found  to  remedy  this  evil  the  most  dis- 
astrous results  to  our  American  institutions  are  almost 
sure  to  follow. 


The  State  and  Other  States.  261 

It  is  also  a  serious  defect  in  our  present  S3^stem  that 
the  national  government  has  no  power  to  prosecute 
in  its  own  courts  injuries  to  foreigners.  It  ought  in 
such  cases  to  be  able  to  indict  the  offenders  before  its 
own  grand  jury,  to  try  them  before  its  own  courts, 
and  execute  the  sentence  imposed  through  its  own 
marshal.  The  Supreme  Court  has  clearly  intimated  that 
such  legislation  would  be  constitutional,  and  Congress 
is  open  to  the  severest  censure  for  not  having  conferred 
upon  the  Federal  Courts  long  ago  the  necessary  power. 
It  is  hard  to  see  what  justification  Secretary  Blaine  had 
for  saying,  in  the  present  condition  of  our  laws  on  the 
subject,  at  the  time  of  the  New  Orleans  massacre  of 
i8gi  that,  "the  United  States  has  distinctly  recognized 
the  principle  of  indemnity  to  those  Italian  subjects  who 
may  have  been  wronged  by  a  violation  of  the  rights  se- 
cured by  the  treaty  with  the  United  States  of  February 
26,  187 1."  For  there  was  no  such  "  principle  "  recog- 
nized by  Webster  in  the  case  of  the  attack  on  the  Span- 
iards in  New  Orleans  in  1850,  nor  by  Bayard  in  the  case 
of  the  Chinese  at  Rock  Springs  in  1885.  Whenever  an 
indemnity  has  been  voted  by  Congress  in  these  or  simi- 
lar cases  it  has  always  been  expressly  stated  that  it  was 
a  matter  of  grace  and  not  of  right. 

As  nations  advance  in  humane  feeling,  and  as  inter- 
course between  them  becomes  more  frequent  and  easy, 
all  restrictions  on  foreigners  except  political  should  be 
reduced  to  the  minimum.  When  once  they  have  been 
allowed  to  establish  themselves  in  the  country,  "  the 
courts  of  their  domicil  ought  to  be  as  open  to  them  as 
to  the  native-born  citizen,  for  collecting  their  debts  and 
redressing  their  injuries." 

Domiciled  aliens  should  not,  however,  be  allowed 
exemption  under  all  circumstances  from  compulsory 


262  The  Sphere  of  the  State. 

military  service.  In  case  they  continue  to  remain  in 
the  country  in  time  of  war  after  ample  opportunity 
has  been  given  them  by  proclamation  to  withdraw,  the 
government  may  justly  compel  them  to  assist  in  the 
national  defence.  When  the  United  States  made  such 
a  requisition  during  the  late  Rebellion  in  1863,  the  na- 
tions affected  did  not  refuse  to  acquiesce.  For  "it  was 
regarded,"  says  Webster,  "  as  an  established  principle 
that  a  government  might,  by  an  ex-post  facto  law,  in- 
clude in  its  conscriptions  any  persons  permanently 
resident  in  its  territory,  provided  it  allowed  them  rea- 
sonable time  and  facilities  for  departure  on  the  promul- 
gation of  such  a  law."  If  an  alien  by  his  own  volun- 
tary act  enters  the  military  or  naval  service  of  a  foreign 
power  he  clearly  by  the  very  act  forfeits  the  protection 
of  his  own  government  during  the  period  of  such  ser- 
vice, and  must  look  for  protection  to  the  State  under 
whose  flag  he  serves. 

leaving  out  of  consideration  many  other  matters 
that  concern  the  intercourse  of  nations,  one  of  the  most 
imperative  duties  in  our  day  of  every  civilized  State  is 
the  establishment  of  an  international  copyright.  As 
Dr.  Johnson  observes,  ' '  there  seems  to  be  to  authors  a 
stronger  right  of  property  than  that  of  occupancy  ;  a 
metaphysical  right,  a  right,  as  it  were,  of  creation, 
which  should  from  its  nature  be  perpetual."  And  yet 
in  1530  we  have  the  first  instance  of  copyright  granted 
to  an  author,  and  the  first  law  in  favor  of  international 
copyright  was  passed  by  Prussia  as  late  as  1837.  For 
the  copyright  of  Shakespeare's  plays  neither  Shakes- 
peare, nor  his  children,  nor  his  grandchildren  received 
anything  ;  and  the  sum  total  that  Milton  and  his 
widow  obtained  for  the  successive  editions  of  Paradise 
Lost  was  ^18.     These  two  cases  illustrate  the  general 


The  State  a7id  Other  States.  263 


rule,  to  which  of  course  there  are  some  exceptions, 
that  the  demand  for  the  works  of  the  greatest  men  is 
not  suflScient  during  their  lifetime  adequately  to  reward 
them  for  their  labors.  And  unless  copyright  is  made 
everywhere  perpetual,  or  at  least  very  prolonged,  the 
nations  of  the  earth  can  not  treat  even  with  the  show  of 
justice  the  greatest  of  their  benefactors.  No  longer 
ago  than  1888  it  was  truthfully  said  that  "America 
alone  of  the  principal  countries  of  the  civilized  world 
enjoys  the  unenviable  distinction,  while  her  citizens 
are  liable  to  secure  a  copyright  of  their  works  in 
Europe,  of  refusing  to  grant  a  copyright  to  foreign- 
ers." For  generations  what  she  could  easily  have 
obtained  with  her  unbounded  resources  for  a  slight 
compensation  she  preferred  to  steal.  Many  great  pub- 
lishing houses  were  built  up  on  the  proceeds.  But 
when  this  piracy  of  the  works  of  European  authors 
became  a  dangerous  calling  because  of  the  number 
engaged  in  it  and  the  uncertainty  of  its  fruits,  the 
"ethical  inertia"  of  the  people  of  the  United  States 
began  to  give  way  to  a  demand  for  some  governmental 
regulation  of  the  matter.  A  great  advance  has  yet 
to  be  made,  however,  before  a  just  international  law 
shall  become  an  established  fact— before  authors  and 
their  heirs  shall  have  as  complete  a  control  over  the 
books  their  labor  and  genius  have  called  into  being, 
as  every  workman  now  has  in  all  countries  over  the 
product  of  his  hands. 

In  all  ages  of  the  world  nations  as  well  as  individ- 
uals have  had  their  differences,  and  not  unfrequently 
has  it  been  found  impossible  to  adjust  these  differ- 
ences without  recourse  to  brute  force.  So  long  as  in- 
sult and  injustice  exist  among  the  nations  of  mankind 
occasions  for  war  will  continue.     Only  when  civiliza- 


264  The  Sphere  of  the  State. 

tion  becomes  complete,  only  when  humanity  reaches 
perfection  in  intelligence  and  virtue,  will  all  provoca- 
tion to  war  cease.     As  there  is  no  authority  above  a 
sovereign  State  to  which  it  can  appeal,  it  is  obliged  to 
redress  its  injuries  by  its  own  efforts.     But  not  even 
when  a  State  has  been  clearly  wronged  and  the  redress 
asked  for  has  been  refused,  is  it  always  justified  in  re- 
sorting to  war.     The  bare  justice  of  the  case  against 
the  wrong-doer  is  not  the  sole  matter  that  the  rulers 
of  a  nation  should  take  into  consideration  before  expos- 
ing the  people  to  the  ravages  of  war.     "If,"  says  Sir 
James  Mackintosh,    "reparation  can  otherwise  be  ob- 
tained, a  nation  has  no  necessity,  and  therefore  no  just, 
cause  for  war ;  if  there  be  no  probability  of  obtaining 
it  by  arms,  a  government  cannot,  with  justice  to  their 
own  nation,  embark  it  in  war  ;  and  if  the  evils  of  resist- 
ance shall  appear,  on  the  whole,  greater  than  those  of 
submission,  wise  rulers  will    consider    an  abstinence 
from  a  pernicious  exercise  of  right  a  sacred  duty  to 
their  own  subjects,  and  a  debt  which  every  people  owes 
to  the  great  commonwealths  of  mankind,  of  which  they 
and  their  enemies  are  alike  members.     A  war  is  just  , 
against  a  wrong-doer  when  reparation  for  wrong  can 
not  otherwise  be  obtained  ;  it  is  then  only  conformable 
to  all  the  principles  of  morality  when  it  is  not  likely  to 
expose  the  nation  by  whom  it  is  levied  to  greater  evils 
than  it  professes  to  avert,  and  when  it  does  not  inflict 
on  the  nation  which  has  done  the  wrong,  sufferings 
altogether  disproportionate  to  the    extent  of  the  in- 
jury."    In  every  case  a  resort  to  arms  is  justifiable 
only  as  a  last  resort.     "  Only  when  war  must  come  is 
it  right  to  let  it  come."     At  the  best  it  is  a  brute's  way 
of  settling  difficulties,  and  as  civilization  advances  it 
should  disappear. 


The  State  and  Other  States.  265 

Every  eflfort  should  be  made  in  our  day  to  prevent 
war  by  friendly  arbitration.  An  international  tribunal 
should  be  constituted  to  which  the  States  of  the  earth 
should  agree  by  treaty  to  refer  their  disputes.  Even 
if  they  were  not  absolutely  bound  to  abide  by  its  deci- 
sions, the  moral  effect  would  be  most  beneficial.  The 
judgment  of  an  impartial  tribunal  of  this  sort  would 
undoubtedly  have  great  weight  in  curbing  the  passion 
for  war,  and  would  reduce  the  number  to  the  minimum. 
The  honor  of  each  nation  would  be  preserved,  for  each 
had  agreed  before  the  dispute  arose  upon  this  mode 
of  settlement.  The  peculiar  form  of  government  of 
each  nation  would  be  in  nowise  affected,  and  the 
civilizing  influence  upon  all  parties  arising  from 
the  adoption  of  such  a  method  of  redressing  injuries 
would  greatly  hasten  the  coming  of  an  era  of  universal 
peace. 

The  American  people  have  now  arrived  at  a  period 
in  their  history  when  international  problems  are  bound 
to  occupy  more  and  more  the  first  place  in  their 
thought.  The  sufiiciency  of  their  form  of  government 
to  solve  these  problems  is  sure  to  be  put  to  the  severest 
test.  It  is  easy  to  see  that  a  confederate  form  of 
government  is  unfavorable  to  international  intercourse. 
Under  such  a  system  the  central  government  has  a 
large  share  of  international  responsibility.  But  as  each 
sovereignty  reserves  to  itself  the  regulation  of  almost 
all  internal  affairs,  it  has  not  the  power  to  meet  this 
responsibility.  Foreign  States  will  not  long  deal  with 
such  an  agent.  They  will  prefer  to  go  directly  to  the 
separate  sovereignties,  and  will  refuse  to  treat  with  the 
central  government.  The  result  will  be  that  the  sepa- 
rate sovereignties  will  become  independent  States,  or 
they  will  be  consolidated,  probably  by  foreign  wars, 


266  The  Sphere  of  the  State. 

into  one  sovereignty  with,  in  many  respects  at  least, 
absolute  powers. 

The  same  result  would  follow  in  a  federal  union  such 
as  ours,  if  the  general  government  kept  excusing  itself 
from  responsibility  for  the  acts  and  omissions  of  the 
separate  commonwealths.  Foreign  nations  would  not 
long  tolerate  the  conduct  of  a  government  that  assumed 
full  responsibility  for  the  observance  of  international 
rights  and  the  discharge  of  international  duties,  and 
then  when  they  were  violated  declined  to  punish 
the  oflFenders  on  the  ground  of  lack  of  jurisdiction. 
Such  a  government  would  constantly  be  exposed 
to  the  perils  of  war  if  it  sought  at  all  to  keep  up 
intercourse  with  others  ;  and  the  effect  of  continuous 
foreign  wars  has  always  been  and  always  must  be  dis- 
astrous to  any  kind  of  popular  government.  The  only 
way  to  avoid  such  a  catastrophe  is  for  the  nation  to 
confer  upon  the  central  government  the  necessary 
authority  to  meet  all  international  obligations,  and  for 
the  central  government  to  invest  its  courts  with  ample 
power  to  tr>^  and  punish,  regardless  of  locality,  all 
violations  of  international  right.  The  objection  that 
at  once  occurs  to  such  a  measure  is  its  centraliz- 
ing tendency.  But  a  sufficient  answer  to  such  an 
objection  is,  as  another  expresses  it,  "that  the  only 
alternative  to  a  moderate  constitutional  centraliza- 
tion of  this  nature  is,  finally,  a  violent  and  radical 
centralization  through  incessant  foreign  complications 
and  frequent  wars." 

The  constitution  of  the  United  States  expressly  con- 
fers upon  Congress  ample  power  "  to  define  and  punish 
piracies  and  felonies  committed  on  the  high  seas  and 
offences  against  the  law  of  nations ' '  ;  and  the  only 


The  State  and  Other  States.  267 

thing  necessary  to  place  us  as  a  people  upon  an  equality 
with  any  other  nation  in  existence  in  international 
matters  is  for  Congress  to  use  this  power.  The  power 
to  make  treaties  is  invested  exclusively  in  the  President 
and  Senate,  and  a  treaty  once  ratified  becomes  the  su- 
preme law  of  the  land,  with  the  execution  of  which  no 
commonwealth  has  a  right  to  interfere.  The  constitu- 
tion has  fully  equipped  the  government  of  the  United 
States  with  the  means  to  discharge  all  the  obligations 
that  the  principles  of  international  law  have  imposed 
upon  it  or  are  likely  to  impose.  If  it  will  not  confer 
upon  its  courts  and  their  ofiicers  the  necessary  authority 
to  meet  the  reasonable  demands  of  foreign  powers,  it 
is  itself  at  fault,  and  not  the  constitution.  It  is  dishon- 
orable in  the  extreme  for  us  as  a  nation  continually  to 
set  up  the  plea  of  inability  for  our  failures  to  observe 
treaty  stipulations.  Nor  will  the  nations  of  the  earth 
always  be  appeased  for  the  outrages  committed  upon 
their  subjects  by  gifts  of  money.  The  remedy  for 
the  present  unsatisfactory  condition  of  affairs  is 
entirely  in  our  hands.  We  greatly  injure  ourselves 
and  retard  the  progress  of  civilization  by  letting  the 
bugbear  of  state  rights  longer  paralyze  all  our  efforts 
to  apply  it. 

* '  When  Congress  shall  have  done  its  duty  in  this 
regard,"  says  Professor  Burgess,  "  when  it  shall  have 
occupied  the  ground  assigned  by  the  constitution  to 
the  general  government,  then  the  United  States  will  be 
fully  able  to  meet  and  discharge  all  its  international 
duties.  We  shall  then  be  compelled  neither  to  humil- 
iate ourselves  by  answering  the  just  demands  of  other 
states  with  a  stultifying  non  possumus  ;  nor  to  expose 
ourselves  to  the  danger  of  confederating  the  Union  by 


268  The  Sphere  of  the  State. 

directing  the  diplomacy  of  foreign  powers  to  the 
commonwealths  ;  nor  to  incur  the  risk  of  over-cen- 
tralization as  the  result  of  needless  wars, — wars  forced 
upon  the  nation  by  acts  or  omissions  of  one  or  another 
of  our  forty-four  distinct  governments  in  matters  of 
international  concern."  \ 


INDEX. 


Aliens,  rights  and  duties  of,  254, 

Anarchy,  how  distinguished  from 

liberty,  5,  6 
Aristotle,  on  money,  133  ;  on  the 

State,  2 


B 


Balfour,  A.  J.,  on  the  requisites 
of  an  international  currency, 
152 

Bank-notes,  143 

Banks,  different  kinds  of,  142 

Bentham,  on  property,  53 

Blackstone,  on  the  social-com- 
pact theory,  22  ;  on  the  rela- 
tion of  husband  and  wife,  216 

Bluntschli,  on  Christianity  and 
the  modern  State,  238,  239 

Brotherhood,  of  man,  1  ;  of  na- 
tions, 247,  248 

Brush,  ex-Warden,  on  our  crimi- 
nal system,  168 

Burgess,  J.  W.,  on  sovereignty, 
6  ;  on  the  dissolution  of  Stales, 
13  ;  on  the  international  rela- 
tions of  the  United  States,  267, 
268 


Canals,  relation  of,  to  the  State, 

98,  99 
Charity,  private  and  legal,   173- 

176 


Child,  and  crime,  166 ;  educa- 
tion, 58  ;  family,  218-220  ; 
pauperism,  180,  181 

Christianity  and  the  modern 
State,  238 

Church,  relation  of,  to  State,  229 
-246  ;  the  intimate  relation  of 
Church  and  State,  229,  230  ; 
every  government  does  and 
must  recognize  this  relation, 
231  ;  the  four  great  theories 
of  this  relation  stated  and 
criticised,  231-237  ;  the  true 
theory,  237,  238  ;  every  mod- 
ern State  should  recognize  the 
principles  of  the  Christian  re- 
ligion as  furnishing  the  funda- 
mental condition  of  its  own 
development,  238,  239  ;  the 
question  of  a  "  State  Church" 
is  a  question  of  expediency 
merely,  240  ;  some  of  the  dis- 
advantages and  advantages  of 
such  a  system,  240,  241  ;  the 
relation  of  Church  and  State 
in  the  United  States,  242-245 

Cicero  on  the  nature  of  law,  33 

Cities,  government  of,  187-206  ; 
the  recent  rapid  growth  of 
cities  in  population,  187,  188  ; 
in  expenditures,  188,  189  ;  in 
indebtedness,  189  ;  the  origin 
of  cities,  189,  190;  history 
of  municipal  government  in 
Spain,  190  ;  in  England,  190, 
191  ;  in  Germany,  192  ;  in 
the  United  States,  192,  193  ; 
the  genius  of  each  State  should 


269 


270 


Index. 


largely  determine  the  nature 
of  its  city  government,  193, 
194  ;  the  testimony  of  ex- 
perts on  the  result  of  the 
present  American  method, 
194-196  ;  the  three  possible 
courses  open  to  the  American 
state,  197,  198  ;  the  modern 
city  pre-eminently  a  business 
corporation,  198,  199  ;  what 
should  be  required  in  the  char- 
ter and  what  left  to  the  in- 
habitants, 201-206 

Civil-service  reform,  no,  205 

Clark,  Emmons,  on  compulsory 
sanitation,  61 

Coke,  on  corporations,  69 

Colbert,  on  taxation,  112 

Colleges,  their  relation  to  the 
State,  43 

Combination,  the  watchword  of 
our  age,  69 

Commissioner,  of  corporations, 
84,  85  ;  of  banks,  148 

Comte,  Charles,  on  inheritance, 
64.  65 

Confiscation,  principle  of,  59 

Conscience  and  conscientious 
scruples,  44,  45 

Constitution  of  the  United  States, 
on  crime,  169  ;  on  the  estab- 
lishment of  a  religion,  242 

Constitutions,  human  and  change- 
able, 33 

Consumption  theory  of  taxation, 
120,  121 

Cooley,  Judge,  on  corporations, 
70;  on  taxation,  113 

Coiporations,  and  the  State,  68- 
87  ;  Benefits  derived  from  cor- 
porations, 68,  69  ;  the  nature 
and  powers  of  corporations, 
69-71  ;  how  they  are  to  be 
treated  by  the  State,  72  ;  why 
treatises  on  corporation  law  so 
often  need  revision,  72,  73  '< 
why  we  should  now  have  a 
common  system  for  all  the 
commonwealths,  73,  74  ;  the 
power  of  corporations  to  bor- 


row should  be  limited,  75, 
76 ;  secrecy  of  management 
should  be  abolished,  76,  77  ; 
personal  responsibility  of  di- 
rectors should  be  increased, 
77-79 ;  taxation  of  corpora- 
tions, 80,  81  ;  trusts  and  their 
place  in  the  State,  81,  83; 
labor  organizations  and  the 
State,  83,  84 ;  duties  of  a 
commissioner  of  corporations, 
84-86 

Crime,  and  the  State,  155-169; 
the  difference  between  the 
criminal  and  the  impotent, 
155>  15^'!  the  four  theories 
concerning  the  treatment  of 
criminals  stated  and  criticised, 
156-160  ;  the  true  theory,  160. 
16  r  ;  the  prison  as  a  great 
industrial  factory,  164  ;  rea- 
sons why  education  in  secular, 
moral,  and  religious  affairs 
should  be  compulsory  for  the 
criminal,  165,  166  ;  the  need 
of  a  revision  of  the  amend- 
ments to  our  constitution  re- 
garding the  treatment  of  crim- 
inals,  168,  i6g 

Criminals,  theories  as  to  their 
treatment,  156-160 


D 


Dickinson,  ex-Postmaster,  on  the 
legal  status  of  the  post-office 
in  the  United  States,  93 

Diffusion  theory  of  taxation, 
126,   127 

Divine  right  of  kings,  19,  20 

Divorce,  220-228 


E 


Education,  in  its  relation  to  the 
State,  35-51  ;  education  the 
chief  function  of  a  govern- 
ment, 35,  36  ;  it  is  not  ulti- 
mately to  be  left  to  the  lo- 
cality  or    to   the   parent,    37, 


index. 


2^] 


38  ;  the  educational  standards 
should  be  fixed  by  the  State, 
3q-4i  ;  this  should  include 
higher  as  well  as  lower  schools, 
42  ;  moral  and  religious  in- 
struction as  well  as  secular 
should  be  furnished  by  the 
State,  44-51 

Elliott,  President,  on  the  govern- 
ment of  cities  in  the  United 
States,  205 

Ellis,  Havclock,  on  the  criminal, 

158 
Eminent  domain,  57 
Expatriation,  principle   of,   252, 

253 
Expenditure  theory  of  taxation, 

120 

Exterritoriality,  principle  of,  250, 

251  .     , 

Extradition    of    criminals,    255- 

259 


Family,  the,  in  its  relation  to  the 
State,  207-208  ;  the  family  the 
nursery  of  the  State,  208,  209  ; 
perverted  ideas  of  the  family 
tend  to  the  dissolution  of  the 
State,  209,  210  ;  how  the  State 
should  regard  marriage,  210, 
21 1 ;  who  should  not  be  allowed 
to  marry,  211-213;  registration 
of  marriage,  213-215  ;  general 
status  of  the  parlies  after  mar- 
riage, 215-218  ;  the  position  of 
the  child  in  the  family,  218- 
220  ;  alarming  increase  in  the 
riumber  of  divorces,  222,  223  ; 
absolute  divorce  should  be 
lUowed  only  on  the  ground 
of  death,  223-227  ;  limited 
divorce  should  be  permitted 
for  a  great  variety  of  causes, 
227,  228 

Farnuin,  H.  W.,  on  ])auper  legis- 
lation, 184 

Fawcett,  Professor,  on  the  dis- 
tribution of  property,  66 


Fenian  troubles  of  1867-8,  255 
Filmer,    on   the    divine  right  cf 

kings,  19 
Franklin,  as  Postmaster-General, 

93 
Freiinghuysen    Secretary,  on  the 
extradition  of  criminals,  256 


Government,  its  relation  to  the 
State,  18-34  ;  the  government 
is  not  the  State,  but  its  agent, 
iS.  ig  ;  criticism  of  \.\\e  de  Jure 
divino  theory  of  government, 
ig,  20  ;  of  the  dc  jure  ecclesi- 
astico  theory,  21  ;  and  of  the 
social-compact  theory,  i\-ii  ; 
the  government  is  always  lia- 
ble to  change,  25,  26 ;  the 
privilege  of  v.)ting,  26,  27  ; 
a  representative's  relation  to 
the  State,  28  ;  the  inviolabili- 
ty of  vested  rights,  28-30  ;  the 
proper  qualifications  of  a  gov- 
ernor, 30-32 

Governors,  proper  cjualifications 
of,  30-32 

Gresham's  law  concerning  money, 
152 

II 

Hadley,  A.T.,  on  the  post-office, 
88 

Halleck,  on  right  of  commercial 
intercourse,  252 

Hart,  ex-Mayor,  on  the  govern- 
ment of  American  cities,  ig6 

Ilickok,  Doctor,  on  the  divine 
origin  of  government,  21 

High  seas  as  open  to  all  nations, 
248,  249 

I 

Inalienable  rights,  6,  7 
Income  tax,  123-126 
Indelible  allegiance,  259 
Indeterminate    sentences,     161- 
163 


.(^ 


72 


fndi 


ex. 


Individual,   the,   his  relation   to 

the  State,  1-3 
Inheritance,  tiie  principle  of,  64, 

65 
Inheritance  tax,  125,  126 
Intercourse,  right  of,  251,  252 
International  arbitration,  265 
International  copyrigiit.  262,  263 
International  law,  foundation  of, 

248 
International    problems    in    the 

United  States,  265 


James,  ex  -  Postmaster-General, 
on  the  post-ofifice,  g4 

Jefferson,  on  the  limitations  of 
government,  30  ;  on  extradi- 
tion for  political  offences,  257 

Jesus,  on  the  brotherhood  of 
man,  248 

Judge,  the  duties  of  a,  33,  34 


K 


Kent,  on  divorce  in  the  United 
States,  222  ;  on  the  extradition 
of  criminals,  256 

Knox,  John  Jay,  plan  for  issu- 
ing bank-notes  in  the  United 


States,  145,  146 


Labor  organizations,  their  place 

in  the  State,  83,  84 
Land,  the  ownership  of,  57,  58  ; 

titles  to,  57 
Liberty,  the  true  ground  of,  5,  6 
Lincoln,  on  the  decisions  of  the 

Supreme  Court,  28 
Livingston,   Doctor,   on    the    re- 
ligious beliefs  of  savages,  229 
Locke,    on    the    social-compact 

theory,  22 
Louis  XIV.  on  the  State,  23 
Low,  Seth,   on   the  government 

of  cities  in  the  United  States, 

194.  19s 


Luther,    on    the    sphere   of    the 
Church,  233 

M 

Mackintosh,  Sir  James,  on   the 
ethics  of  war,  264 

Marriage,  211-220 

Miller,  Justice,  on  taxation,  113 

Money,  and  the  State,  133-154  ; 
the  power  of  the  government 
to  affect  the  value  of  money, 
133  ;  the  historic  forms  of 
money,  133-135  ;  advantages 
of  gold  and  silver  as  money, 
135.  136  ;  the  money  supply 
need  not  be  limited  to  specie, 
136-138  ;  the  nature  of  incon- 
vertible paper  money,  139- 
142  ;  banks  and  bank-notes, 
142,  143  ;  the  merits  of  nation- 
al banks  and  demerits  of  State 
banks,  144,  145  ;  the  best  way 
to  increase  our  money  supply, 
146  ;  savings  banks  and  their 
relation  to  the  government, 
146-14S  ;  postal  savings  banks, 
148  ;  why  usury  laws  should 
be  abolished,  149-151  ;  argu- 
ments for  monometallism  and 
for  bimetallism,  152,  153  ;  why 
creditor  nations  desire  the  one 
and  debtor  nations  the  other, 
153  ;  our  future  monetary  poli- 
cy, 153  ;  the  probable  future 
of  silver,  154;  desirability  of 
an  i  nternational  clearing-house, 
154 
Monopolies,  no 
Montesquieu,  on  property,  53,  54 
Mulford,  Doctor,  on  the  family, 
215 

N 

Natural  right  not  of  necessity 
an  absolute  right,  55,  56 

Nicaragua  canal,  99 

Non-interference,  duty  of,  249, 
250 


index. 


27- 


o 


Other  States,  relation  of  the  State 
to,  247-268  ;  the  States  of  the 
earth  as  one  great  brotherhood, 
247 ;  each  State  the  absolute 
right  to  select  and  maintain 
its  own  form  of  government, 
24S ;  the  high  seas  as  free  to 
all,  248,  249  ;  the  right  of  self- 
defence,  249  ;  the  duty  of  non- 
interference, 249,  250  ;  the 
principle  of  exterritoriality, 
250,  251  ;  the  right  of  inter- 
course, 251,  252  ;  the  right  of 
expatriation,  252,  253  ;  the 
rights  and  duties  of  aliens,  254, 
255  ;  the  extradition  of  crimi- 
nals, 255-258  ;  the  establish- 
ment of  an  international  copy- 
right, 262,  263  ;  war,  and  when 
justifiable,  263-265  ;  interna- 
tional arbitration,  265 ;  the 
growing  importance  of  inter- 
national problems  in  the  Unit- 
ed States,  265  ;  duty  of  Con- 
gress to  at  once  confer  upon 
our  courts  the  authority  to 
carry  out  our  treaty  stipula- 
tions with  foreign  powers,  266 
-268 

P 

Paper  money,  1 38-141 

Pauperism,  170 

Peter  the  Great  as  head  of  the 
Greek  Church,  234 

Phelps,  E.  J.,  on  divorce,  224 

Phillimore,  on  the  first  law  of 
nations,  249 

Plato,  on  the  nature  of  law,  33  ; 
on  the  family,  208 

Poor,  the,  and  the  State,  170- 
186  ;  the  difference  between 
poverty  and  pauperism,  170  ; 
what  formerly  took  the  place 
of  pauperism,  171,  172  ;  the 
relation  of  the  present  indus- 
trial age  to  modern  pauperism, 
172,  173  ;  arguments  for  leav- 


ing the  care  of  the  poor  entirely 
to  private  charity,  173,  174  ; 
reasons  for  legal  charity,  174- 
176  ;  England's  experience 
with  legal  charity,  176-179  ; 
the  prmciple  upon  which 
assistance  should  be  given, 
179,  180  ;  the  treatment  of 
destitute  children,  180,  181  ; 
necessity  of  organized  charity, 
181,  182;  the  difference  be- 
tween American  and  European 
pauperism,  183,  184  ;  the  pre- 
vention of  pauperism,  185,  186 
Postal  savings-banks,  148 
Post-office,    the,  and    the    State, 

91-94 
Poverty,     and    the     State.     See 

"  Poor  " 
Prisons  as  manufactories,  164 
Private  schools  as  related  to  the 

State,  39 
Property,  and  the  State,  52-67  ; 
the  sacredness  of  the  right  to 
property,  52  ;  what  is  and 
what  is  not  the  ultimate 
ground  of  the  right  to  prop- 
erty, 53-55  ;  the  natural  right 
to  property  subordinate  to  the 
State  right,  55,  56  ;  the  State  as 
the  ultimate  controller  of  the 
sources  of  property,  57  ;  of  its 
mode  of  acquisition,  58,  59  ;  of 
its  uses,  59--61 ;  and  of  its  trans- 
fer and  descent,  61-63  I  ^i^  in- 
heritance tax  as  a  check  on  the 
unjust  distribution  of  property, 

63-65 

Protection  as  the  prime  function 
of  government,  25 

Protection  theory  in  the  treat- 
ment of  criminals,  159 

Punishment  theory  in  the  treat- 
ment of  criminals,  156-159 


R 


Railroad,  the,  and  the  State,  99- 
III  ;  the  importance  of  the 
railroad  in  modern  life,  99,  roo; 


^1\ 


index. 


the  three  possible  systems  of  its 
control,  I00-I02  ;  the  railroad 
as  a  private  corporation,  102  ; 
history  of  railroad  legislation 
in  France,  England,  and  the 
United  States,  102-106  ;  need 
of  governmental  supervision, 
106  ;  what  such  supervision 
should  accomplish,  106-iog  ; 
the  reckless  destruction  of  life 
by  railroads,  loq  ;  when  the 
United  States  should  adopt 
direct  governmental  control, 
109-111 
Reformation  theory  in  the  treat- 
ment of  criminals,  160 
Renan,   Ernest,   on  the  unifying 

power  of  language,  10 
Representative,  duties  of  a,  28 
Roman    Catholics,    on    religious 

instruction  in  the  school,  49 
Revolution,  right  of,  25,  26 
Rogers,  Thorold,  on  money,  133 


Sanborn,  Secretary,  on  pauper- 
ism, 171 

Savages,  relation  of  civilized  na- 
tions to,  12-14 

Savings-banks  and  their  relation 
to  the  State,  146-148 

Secession  in  the  State,  5 

Self-defence,  right  of,  249 

Seligman,  Professor,  on  the  taxa- 
tion of  corporations,  123 

Seward,  Secretary,  on  the  extra- 
dition of  criminals,  256 

Single-tax  theories,  127 

Smith,  Adam,  on  taxation,  1 17 

Social-compact  theory  of  govern- 
ment, 21-23 

Society,  the  two  ideas  at  the 
foundation  of,  1 

Sovereignty  as  the  foundation  of 
the  State,  4 

Spencer,  Herbert,  on  the  chief 
object  of  government,  23 

State,  the,  true  conception  of, 
1-7  ;  the  two  truths  that  are 


united  in  the  true  conception 
of  the  State,  i,  2;  the  State 
an  organism,  2,  3  ;  its  essential 
attributes,  4  ;  a  limited  or 
divided  sovereignty,  4,  5  ; 
falsity  of  the  doctrine  of  in- 
alienable rights,  6  ;  the  boun- 
daries of  States,  how  deter- 
mined, 8-12  ;  the  dissolutions 
of  States,  12-16  ;  the  Teutonic 
nations  as  the  founders  of 
States,  14,  15  ;  the  ends  of  the 
State,  16,  17  ;  the  relation  of 
the  State  to  other  Stales,  see 
"  Other  States  " 

Stevenson,  on  governmental 
ownership  of  the  railroad,  102 

Sterne,  Simon,  on  railroad  legis- 
lation, 103 

Story,  Judge,  on  the  first  amend- 
ment to  the  constitution,  242, 

243 
Suffrage,    nature   and  object  of, 
26,  27 


Taxation,  and  the  State,  I12-132; 
necessity  and  usefulness  of 
taxation,  112,  113  ;  taxation 
limited  to  public  needs,  113  ; 
it  is  primarily  on  persons,  115, 
116  ;  why  in  our  day  it  should 
not  be  chiefly  upon  general 
property,  or  expenditure,  or 
consumption,  but  upon  corpo- 
rations and  inheritances,  117- 
126 ;  the  diffusion  theory  of 
taxation,  126  ;  single  tax 
theories,  127  ;  direct  taxation, 
127-129  ;  why  local  taxation 
should  be  chiefly  on  real  estate, 
129  ;  why  charitable,  educa- 
tional, and  religious  organiza- 
tions should  be  exempt  from 
taxation,  130 

Telegraph,    the,    and   the  State, 

Q5-97 
Telephone,  the,  and  its  relation 
to  the  State,  97,  98 


tndi 


ex. 


^75 


Teutonic  nations,  as  the  founders 
of  States,  14,  15 

Thiers,  on  property,  55  ;  on  poor 
relief,   180;  on  taxation,  126 

Tilden  commission,  on  the  gov- 
ernment of  cities,  2or 

Townsend,  J.  D.,  on  savings 
banks,  148 

Transportation,  and  the  State, 
88-1  r  I  ;  how  transportation 
affects  the  development  of 
cities  and  tlie  distribution  of 
commodities,  89  ;  the  respon- 
sibility of  the  State  for  making 
the  means  of  inter-communica- 
tion the  best  possible,  90,  91  ; 
for  the  transmission  of  intelli- 
gence, see  "  Post  -  office," 
"  Telegraph,"  "Telephone  ;  " 
of  persons  and  commodities, 
see  "railroad"  and  "  canals" 

Transportation  theory  in  the 
treatment  of  criminals,  t66, 
167 

Trust,  and  their  place  in  the 
State,  81-83 

U 

Usury  laws,  and  why  they  .should 
be  abolished,  149-151 


Vested  rights  to  property,  60 
Von    Schulte,   on  the   legitimate 

aims  of  the  Church,  232,  233 
Voting,  the  privilege  of,  26,  27 


^Y 


Walker,  F.  A.,  on  taxation,  118 
128  ;  on  money,  141 

War,  and  when  justifiable,   263- 
265 

Warner,  C.  D.,  on  the  child  and 
the  State,  166 

Warner,  A.  G.,   on  corporations, 
76 

Wells,  D.  A.,  on  taxation,  112 

White,   A.    1).,    on  the    govern- 
ment of  American  cities,  194, 

195 
Wines,   F.    H.,    on   the  army  of 

crime,   158 
Woolsey,  on  political  intercourse, 

251 
Worms,  concordat  of,  234,  235 
Wright,  Carrol  D.,  on   marriage 

registration,  214,  215 


7c 

13 

,  ]  A/It? 


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